Constitutionalising immigration law 9781845449117, 9781845449100

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ISSN 0309-0558

Volume 48 Number 1/2 2006

Managerial Law Constitutionalising immigration law Dr Elia Marzal

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Managerial Law

ISSN 0309-0558 Volume 48 Number 1/2 2006

Constitutionalising immigration law Dr Elia Marzal

Access this journal online _________________________

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Editorial advisory board___________________________

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Abstract and keywords ___________________________

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List of abbreviations ______________________________

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Introduction ______________________________________

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PART ONE Reconstructing the judicial process of extension of protection to aliens _______________________________

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1. Germany: tempering the denial of immigration through the constitutional guarantees of fundamental rights ___________________________

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2. France: mitigating the restriction on immigration through the controˆle de le´galite´ ___________________________________

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CONTENTS

CONTENTS continued

3. Spain: acknowledging the phenomenon of immigration through the new constitutional framework __________________________________

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4. Comparing judicial activism in the field of immigration _________________________________

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PART TWO Assessing the judicial process of extension of protection to aliens _______________________________

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5. Supranational mechanisms of protection of fundamental rights ___________________________

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6. Internal mechanisms of protection of fundamental rights ___________________________

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7. Judge-made law in the protection of fundamental rights ___________________________

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Conclusion _______________________________________

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List of court decisions ____________________________

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Notes ____________________________________________

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References _______________________________________

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EDITORIAL ADVISORY BOARD

Professor Nikitas Aliprantis Democritos University of Thrace, Greece

Professor Dr Hab Weislaw Lang Nicholas Copernicus University, Poland

Professor Gabriel Aubert University of Geneva, Switzerland

Professor Jean-Pierre Laborde University of Bordeaux, France

Professor Philippe Auvergnon University of Bordeaux, France

Professor Gerard Lyon-Caen University of Paris I, France

Professor Dr Roger Blanpain University of Leuven, Belgium

Professor The Lord Norton of Laith Centre for Legislative Studies, University of Hull, UK Professor Vassil Mratchkov University of Sofia, Bulgaria Professor Paul O’Higgins Christ’s College, Cambridge, UK

Professor Marcel Bourlard ILO Representative, Belgium Professor Umberto Carabelli University of Bari, Italy Professor Antonio de Lemas Monteiro Fernandes University of Lisbon, Portugal Professor Antoine Jacobs Tilberg University, The Netherlands Professor Dr Hab Janusz Justynski Jean Monnet Centre of European Studies, Nicholas Copernicus University, Poland

Managerial Law Vol. 48 No. 1/2, 2006 p. 4 # Emerald Group Publishing Limited 0309-0558

Professor Dr Oridu Tinca University of Oradea, Romania Professor Sir John Wood Formerly of the University of Sheffield and President of the CAC, UK Professor Bruno Venetiani University of Bari, Italy

The current issue and full text archive of this journal is available at www.emeraldinsight.com/0309-0558.htm

Constitutionalising immigration law

Immigration law

Elia Marzel Law Faculty, Ramonllull University, Barcelona, Spain Abstract

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Purpose – The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process of conferral of protection. Design/methodology/approach – One main dimension is selected and discussed: the case law of the national courts. The study focuses on the legal status of immigrants resulting from the intervention of these national courts. Findings – The research shows that although the courts have conferred an increasing protection on immigrants, this has not challenged the fundamental principle of the sovereignty of the states to decide, according to their discretionary prerogatives, which immigrants are allowed to enter and stay in their territories. Notwithstanding the differences in the general constitutional and legal structures, the research also shows that the courts of the three countries considered – France, Germany and Spain – have progressively moved towards converging solutions in protecting immigrants. Originality/value – The research contributes to a better understanding of the different legal orders analysed. Keywords European Union, Laws and legislation, Immigrants, Case law Paper type Research paper

Managerial Law Vol. 48 No. 1/2, 2006 pp. 5-251 # Emerald Group Publishing Limited 0309-0558 DOI 10.1108/03090550610646771

List of abbreviations

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Ass. ATC ATS BL BVerfGE BVerwGE CC CE DC EC ECHR ECJ ECR ECtHR ICCPR RAJ Rec. Sect. SIS STC STS TC

Assemble´e Auto del Tribunal Constitucional Auto del Tribunal Supremo Basic Law Entscheidung des Bundesverfassungsgerichts Entscheidung des Bundesverwaltungsgerichts Conseil Constitutionnel Conseil d’E´tat De´cision du Conseil Constitutionnel European Communities European Convention for the Protection of Human Rights and Fundamental Freedoms European Court of Justice European Court Reports European Court of Human Rights International Covenant on Civil and Political Rights Repertorio Aranzadi de Jurisprudencia Recueil Lebon de Jurisprudence du Conseil d’E´tat Section Schengen Information System Sentencia del Tribunal Constitucional Sentencia del Tribunal Supremo Tribunal des Conflits

Introduction The reasons for and the specific process of conferral of protection on aliens constitute questions which have been the subject of lengthy analysis and debate. The progressive consolidation in the host countries of a status for aliens appears in effect to contradict the restrictive trend initiated after the 1973 oil crisis. The refusal of any new arrivals of immigrants was then adopted by most Western countries as the general principle, this trend being moreover progressively reinforced by the construction of the European Union and its exclusive effect vis-a`-vis third-country nationals. Essentially, the deep reluctance to immigration by the governments or, even, by a large sector of the population of the host societies, did not seem to leave room for the kind of rights that have been ultimately recognised[1]. Very different analyses of this phenomenon have been attempted. Post-modern and globalist interpretations have for instance argued that the international movement of protection of human rights, as consolidated and institutionalised in the aftermath of the Second World War, has been determinant of the evolution of the status of aliens in domestic systems. From this perspective, the national constitutions would represent a reflection of this international influence, and jurisdictional institutions, such as the European Court of Human Rights (hereinafter ECtHR), would have had a revolutionary impact on states’ traditional sovereign prerogatives. Moreover, according to some of these theories, the influence of this international trend has implied the transformation of key notions such as citizenship. They understand, ultimately, that this influence has led to the emergence of a post-national type of citizenship, grounded on a humanitarian and universalistic conception of the person, instead of on the legal and territorial links to the state. In the final analysis, this emerging new citizenship explains the progressive conferral on aliens of a status practically equivalent to the one enjoyed by nationals, irrespective, thus, of their nationality[2]. Other theories, instead, interpret less positively the final impact of international law and argue that this influence is at most only indirect. They consider that it is rather the use of the international human rights-oriented discourse by the states, as a way of selflegitimisation vis-a`-vis the international community, which actually leads to the evolution of the internal systems[3]. In this sense, it is principally the domestic circumstances in each country that determine the assumption or not of international norms, in function, in the final analysis, of an instrumentalist approach to these norms by governments[4]. In fact, some of these analyses rather exclude the possibility of real impact by the international mechanisms and focus instead on the internal processes of conferral of protection on aliens[5]. From their perspective, the specific reasoning followed in each of the host countries is what has enabled the emergence of a protection of aliens, and which actually explains the different national migration patterns[6]. The main aspect of these latter interpretations, though, is the analytical causal dissection to which they proceed and the importance that they basically confer on the existence of concrete mechanisms of protection, as opposed to the abstraction of the theories that affirm the impact of the international human rights discourse[7]. The idea giving rise to this book also follows the above reasoning. The object of this research is not so much the analysis of the existing legal response by the states to the – economic and social – phenomenon of immigration, as the reconstruction of its process of formulation. For this purpose, one main dimension in this process has been

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selected: the case law of the national courts. Apart from showing the final definition of the rights of the immigrant – that is to say, once reformulated by the intervention of the judge – the judicial instrument allows for the analysis of the underlying immigration policy guidelines, as well as of the legislative criteria and administrative practice from which the courts depart in their reasoning and thus often correct. In effect, inherent in the judicial function of adjudicating the law is the reformulation of the legal norm according to the material context in which it is to be implemented. From this perspective, the analysis of the case law practically enables a sociological analysis of the law. Instead of focusing on specific legal notions and institutions, it makes the examination of legal problems that arise from concrete social circumstances possible. In this sense, the research undertaken here does not attempt to describe the different national legal systems, but rather the integration of these systems in their respective social realities. Ultimately, this study intends to analyse the active process of elaboration by society of normative responses for newly emerging phenomena. Thus, in the final analysis, the judiciary is the instrument that allows the consideration – albeit indirectly and implicitly – of the various levels of influence in this process. The study of the case law carried out here tries in fact to reflect, and to a certain extent integrate, the different theories and explanations of the emergence of an aliens’ status. In a way, it also tries to verify their validity. Insofar as the assumption by the law of a specific reasoning is what confers positive effects on it, that is, protection, the law becomes in this study the filter through which the different elements involved achieve real impact, and the judicial reasoning the expression of the criteria followed in the implementation of that filter. The importance of the role of the courts in the construction of the legal status of immigrants is in reality a situation that has been increasingly identified and analysed in the research undertaken by various scholars concerning this topic. Not only has this occurred in the legal sphere, where the evaluation of the courts’ contribution necessarily represents a more general and obvious demand, but also, and more significantly, in the politico-academic debate[8]. In effect, during the last decades of consolidation of the phenomenon of immigration, aliens law has undergone major transformations in the majority of Western countries, the courts having represented a key element in this process. Most meaningfully, this has been also the case in countries where the courts are in principle not expected to play such a leading role. It is actually the specific nature of the immigration phenomenon and the organisation of its reception in the host countries, as controversial and highly sensitive political issues, which seems to explain the predominant role of the courts in this sphere. These are in fact less vulnerable than other powers such as that of the legislature to this type of political pressure. The perspective This study focuses on the legal status of aliens resulting from the intervention of the courts. However, it intends to do so from a more specific perspective: the so-called phenomenon of constitutionalisation, that is, of increasing expansion of constitutional justice. From this point of view, the intervention of the courts, giving rise to an established and consolidated body of rights of aliens, would express the confluence of two main underlying questions. These are the (legal) phenomenon of modern constitutionalism and the equally modern (but economic) reality of massive immigration.

The phenomenon of constitutionalisation represents a further stage in the evolution of constitutionalism. Beyond the traditional schemes of nineteenth century constitutionalism, where constitutions were fundamentally conceived to limit governmental powers, but also seen as the tools to set up, organise, and empower the governmental branches in order to establish the liberal state, modern constitutionalism places the individual at the centre of its aims and interests. In this way, the protection of the rights of the person becomes the guideline of modern constitutions, all of which now incorporate a catalogue of fundamental rights. In fact, as opposed to American constitutionalism, which is based on a ‘‘Lockean’’ concept of the state, this consisting of limited prerogatives and understood as the moderator of the different social groups, European constitutionalism perceives the state as the authority with the ultimate source of law and justice. Thus, whereas in the American tradition human rights are understood as preconstitutional rights limiting all state authority, and the Constitution was thus conferred the consequent normative force, according to nineteenth century European thought, the legislator remained the supreme power. The pouvoir constituant had actually a moral obligation to introduce into the constitution fundamental rights and effective protections against their misuse by the executive power[9], but this obligation was not controlled by any public authority. The establishment of such effective guarantees was actually not achieved in Europe until the creation of the constitutional courts in the aftermath of the Second World War, these arising as the key instrument to grant the realisation of this new framework. In the European tradition, public law is perceived as a hierarchy of norms developing out of the constitutions. As understood by Kelsen, this hierarchical order of legal norms is in fact what offered the basis for the establishment of constitutional review in continental Europe[10]. The resulting new system, which is characterised by the principle of normative supremacy of the constitution and by the authority in charge of ensuring its respect – the constitutional judge – is in effect what has given full meaning to the phenomenon of constitutionalisation. Constitutionalisation implies the subordination of the legal system and of the traditional organisation of political powers to a new logic. The traditional conception of the legal system as composed of different domains of law, more or less independent of each other, has given way to a conception of the legal order as a unity, constitutional law being the ultimate legal source and the unification force between the different domains. Indeed, with the advent of constitutionalisation, it is not only the object of constitutional law that has been altered. As the very term constitutionalisation implies, these new constitutional principles now have a different reach and dimension. They in fact overcome the strict limits of constitutional law, pervading every legal area which can be relevant to human dignity. The pre-existing rights thus become constitutional rights, that is, limits that cannot be transgressed, not even by the law itself. In this context, ordinary law courts are no longer subordinated to statutes, their role and function having been gradually transformed by the development of constitutional review. Courts are increasingly perceived as political actors, influencing lawmakers and administrative agencies[11]. Their precise role is that of protecting the legal order from statutes and other acts contrary to the constitution[12]. They thus represent the main actors in the phenomenon of constitutionalisation, constituting the instrument through which these new principles are imposed on the legal order, by ensuring the respect of these principles by the other public authorities.

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Ultimately, constitutionalisation is a movement that was bound to have an impact on the sphere of immigration, precisely on the grounds of the condition of humanity of aliens. The phenomenon of immigration, in its actual features and dimensions – economic and massive – emerges as a major force throughout the world, as a structural element in nearly all industrialised countries, most of them having become diverse and multiethnic societies. Nevertheless, a paradox characterises today’s society as regards immigration: while the global economy generates increasingly powerful migratory fluxes from developing to developed countries, it creates at the same time conditions within developed countries that promote the implementation of restrictive immigration policies[13]. Moreover, immigration becomes a phenomenon that transforms radically the basis on which modern states were conceived, thereby necessitating the definition of new premises which take into account the existence of an increasingly significant group of non-national permanent residents in the territories of these countries and the new and flexible meaning acquired by borders. Immigration seems thus to constitute one of the most serious challenges to the capacity for adjustment of all Western legal orders and, indeed, to the very movement of constitutionalisation. Ultimately, immigration somehow tests the reality of the alleged expansion of the principles of protection of the person, as well as the related international discourse of human rights. It expresses the need to overcome the limits inherent in the idea of ‘‘national’’, as well as the difficulties that the ‘‘non-national’’ poses for traditional national legal thinking. The instrument In those areas that fall under the rubric of human dignity, the phenomenon of constitutionalisation represents, therefore, the surmounting of the limits of the national state that are constitutive of modern law. By introducing the perspective of rights concerning human dignity which does not recognise borders, constitutionalisation juridifies the economic space of massive migration, in order to enable – or, moreover, necessitate – its regulation by the law. Two different instruments could be considered as capable of going beyond the limits of the national space and, thus, of granting protection regardless of nationality. These are, the legislator, which creates the norm, and the judiciary, which interprets the norm but which, in its own way, also recreates or, even, creates it. It is however the internal logic of the judicial intervention, strong before the specific case, rather than the legislative instrument, weak vis-a`-vis the specific features of the immigration phenomenon, that appears as particularly suited to moulding the law to meet the requirements of immigration. In the final analysis, the flexibility of the judiciary renders the courts a normative instrument with an exceptional potentiality. The insufficiency of the legislative instrument is in fact evidenced by a whole series of issues surrounding the immigration phenomenon: the aforementioned limits of the national sphere, the complexities inherent in the international public space, the sovereignty of political power that affirms its discretionary prerogative vis-a`-vis aliens, or, ultimately, the difficulty to use the abstraction of the law in cases in which values emerge from the very foundations of the legal order. In fact, until the intervention of the courts, the protection conferred on aliens was merely of a temporary type, essentially depending on the discretionary administrative power, to which the legislator had de facto delegated its role.

Ultimately, thus, the judge remedies the lack of precise and definitive legal solutions. It allows for the emergence of absolute rights, limiting in this way the precariousness that characterises the position of aliens in the legal order. The judge proceeds to do this in a two-fold movement. It advances the norm, in cases of absence of legal criteria, and withdraws, once this norm has been already enacted by the legislator. The judge in fact departs from a – constitutional, legislative or even regulatory – given premise, and defines, nuances and reformulates progressively those first legal responses, to the extent of establishing the rights of the alien as absolute, by merely asserting the pertinent constitutional imperatives. The law, therefore, through the reasoning of the courts, and in cases of lack of protection, gives shape and specific content to that abstract movement of constitutionalisation. The categories of analysis In order to give an account of the confluence of these two phenomena (constitutionalisation and immigration), the progressive construction by the courts of the legal status of aliens will be presented here through a specific category of rights defined for this purpose. This is the double category of precarious and emergent rights, intending to express in its duality the divided and oscillating tendencies of the courts when confronting immigration issues. The term precarious is used here to express the type of rights resulting from the judicial confirmation of the fundamental premise set by the states in the sphere of immigration: the non-existence of a right to entry and permanence. These two possibilities are in fact conceived as a merely discretionary prerogative of the states which, according only to their general and public interests, can ‘‘graciously’’ concede them or decline to do so. Thus, the rights that aliens can otherwise lawfully enjoy once admitted into the territory, become directly subordinated to the obtaining of this administrative authorisation – the permit of entry and permanence. By the same token, to the extent that it flows exclusively from the interests of the sovereign states, the enjoyment of the rights obtained through residence (that is, once admitted into the territory), can at any time come to an end, since the threat of expulsion remains ever-present. In this sense, the term precarious intends to indicate the nature of the rights underlying the courts’ approach to immigration. Not only is the right to entry and permanence denied – which would in fact simply represent a lack of rights – but this very denial has also determinant practical consequences, since the type of protection nevertheless conferred on aliens then becomes revocable at any time. Therefore, the notion of precariousness as employed in this book ultimately designates the court decisions that directly or indirectly confirm the main premise on which immigration law is grounded – the sovereignty of states. For its part, the term ‘‘emergent’’ conveys this other – although contradictory – tendency of the courts to recognise, under the impulse of the movement of constitutionalisation, a series of rights that limit progressively this denominated precariousness. This tendency firstly revealed itself by the setting up of requirements concerning the capacity of the states to put into effect this premise of precariousness – that is, their right to refuse unwanted aliens – and by secondly questioning the very legitimacy of the premise itself. Ultimately, they are qualified as emergent rights since they do not find their source and justification in any parliamentary text, as legal reasoning would strictly demand. Simply, they derive from the implementation by the courts of the constitutional principles of protection of fundamental rights, and sometimes in spite of the legal or

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administrative criteria regulating the position of aliens. Emergent rights are created, it is therefore said, from the clash between the law and the judge. Therefore, this is a double category that indicates both the oscillation and dilemma in the case law of the courts. Ultimately, it expresses the fundamental duality characteristic of the immigrant’s legal status – a status divided in its ambivalent condition of both non-national and person. The movement of constitutionalisation stresses the accent on the second of these two conditions. Precisely, the emergence of a constitutional status (or rather, of the so-called emergent rights) through the action of the courts, immersed in these dynamics, seems to prove the impact of such movement. However, this impact is not unlimited. The intrinsic difficulties of the process of definition of this legal status – slow and contradictory – are indeed evidenced in the logic of this double category. The method In keeping with the perspective adopted in this work – the phenomenon of constitutionalisation – as well as with the type of theories that consider that the main forces driving the conferral of protection on aliens are national, the method followed here is comparative. It focuses on the legal orders of Germany, France and Spain, trying thus to elucidate the specific process of construction of the legal status of aliens and the role played in it by the courts. In this sense, the use of the comparative method reinforces the aim ultimately pursued in this work with the analysis of the case law. That is, the observation of the elements at play in a given system, rather than the achievement of abstract definitions. The latter would instead be the aim of the dogmatic method which is based on an analytical reasoning of the normative frameworks at hand[14]. As against a static conception of law, both the judicial and the comparative instrument conduct a dynamic analysis of the legal orders. In fact, the observation of judicial decisions represents a natural question for the comparativist. Thus, in many countries, the use of the comparative method has been parallel to the greater attention achieved by case law. Quoting the words of the comparativist Rodolfo Sacco, ‘‘comparative law is an historical science concerned with what is real’’. In this way, the use of this discipline has led to the reassessment of the role of case law. Ultimately, comparativists examine the ways in which the legal actors intervene in different legal orders with specific rules and general categories. In a way, therefore, comparative law provides a substitute for legal epistemology, renewing the foundations of legal knowledge and offering new ways to approach innovations in legal science[15]. Essentially, comparativists have reinitiated the analysis of the legal sources, seeking to identify all the elements that influence the creative process of law and that shape its rule and life. In this sense, the examination of the courts’ case law does not ensure in itself an understanding of a legal system either. It becomes in fact necessary to take into consideration all actual factors that may determine how cases will be resolved in the near future. It is therefore fundamental to consider the different type of influences to which judges are subject. For instance, judges may be influenced by the existence of a general debate in society concerning one question, as is happening in the case of immigration. Likewise, the factors of influence may be related to the judges’ background. A judge appointed from an academic position will for example tend to confer more importance on the doctrine supported by scholars than judges who have always practised law[16].

Ultimately, thus, the judicial instrument allows for a type of comparative approach which, apart from showing the different responses given by the domestic legal orders, reflects on the possible solutions to new phenomena such as immigration. In a way, by analysing the active process of formulation of such responses, it even seeks to propose them, this being something often regarded as one of the aims of comparative law. Indeed, different efforts have been made to justify comparative law by its practical uses. One of them would be attaining uniformity among the legal systems of different nations. In the case of immigration, where serious attempts are being made in the context of European integration to uniformise the different existing national answers to this phenomenon, the reciprocal influence between the countries and, therefore, this dimension of comparative law becomes directly relevant. Globalisation is in effect a well-known challenge in today’s world, its development causing the integration of national legal systems through the enactment of formal international treaties and multilateral organisations. The question then posed is whether the traditional legal systems are ready for such developments or whether they will impede them[17]. In this sense, the comparative approach would suit today’s increasingly globalised type of society, the respective legal orders tending towards a convergence in the actual solutions offered. The courts would thus represent the mechanism enabling a progressive uniformity while avoiding the rigidities and obstacles inherent in other type of transposition of legal solutions and institutions. In a way, they constitute a nonexplicit mechanism of approximation between initially diverging legal positions, inasmuch as they allow for a gradual modification of the respective original premises. Likewise, besides achieving uniformity, comparative law can be helpful whenever foreign legal models are imitated. This is especially significant in the case of Spain, whose institutions only recently assumed democratic and constitutional parameters, and where the phenomenon of immigration constitutes a new reality. Spain therefore returns to the experience and formulas adopted by its neighbouring countries. Indeed, after the end of the Franco era, different foreign legal institutions and rules have been selectively adopted. It becomes thus fundamental to understand both the foreign rules and institutions borrowed as well as the Spanish legal system. This is in fact the main reason justifying in this research the analysis of the Spanish case, where both the number and importance of the court decisions on immigration are still limited. In this sense, one of the questions that this work tries to observe is the way in which the Spanish courts have acted with respect to countries with years of experience in the immigration sphere and of constitutional practice, such as France and Germany. In other words, it tries to see whether the reasoning of the Spanish courts can be explained through the influence of its neighbouring countries or whether, instead, they are actually independent of these external factors of influence. From this perspective, this functionalist type of comparative approach would practically represent a clinical method consistent with a three-step procedure – analysis, diagnosis and treatment – which would ultimately facilitate the proposal of solutions for a given set of problems. In this sense, this kind of methodology would diverge from the original aims of comparative law, these essentially being the description of the systems analysed[18]. Above all, though, comparative law, like other sciences, is devoted to the acquisition of knowledge[19]. It therefore studies different legal systems in order to establish to what extent they are similar or different. Germany, France and Spain are thus analysed here, each of them representing a specific type of experience and approach to the phenomenon of immigration and, at the same time, different kinds of legal structures

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on which the respective reasoning and mechanisms of intervention by the courts are grounded. The countries considered As against the countries traditionally considered to be countries of immigration (which originated in and were founded upon this phenomenon), most European states have refused to consider immigration as a determinant element of their national identity or their policies. In fact, the perception of this phenomenon has started to change only recently, these countries becoming progressively active in the definition of specific immigration policies. Still, important differences are to be observed between these states, both in the kind of first contact and approach to immigration and in the type of policies adopted, which in turn express a specific conception of the phenomenon, as well as, ultimately, an external projection of the image that the countries build of themselves. Germany represents a particular case. Although it has always denied categorically its character as a country of immigration, it is paradoxically the state which has received the greatest amount of immigration since the end of the Second World War. This tension is in effect the feature that most clearly characterises the German case. An explanation for it can perhaps be found in the conjunction of a very present historical traumatic past – which forces the establishment of a generous and flexible asylum policy – and a reiterated official affirmation of the temporary character of the phenomenon of immigration, which leads to the definition of its immigration policy around the notion of the Gastarbeiter. However, these two apparently contradictory dimensions have progressively converged. The immense number of asylum applications received by Germany – reaching its peaks in 1991-1992 – provoked serious political tensions, this leading in 1993 to constitutional reform of the right of asylum. At the same time, the official position of the government as regards the temporary and rotary system of reception of immigrant workers – the Gastarbeiter – was finally nuanced, once it became clear that a ‘‘strict rotation’’ principle was not in the interests of either the migrants or their employers. The government started to consider the need to integrate those now permanent residents. The 1990 reform of the 1965 Aliens Act, which had been drafted under the spirit of the ‘‘guestworker’’ system, expressed this need for evolution. This notwithstanding, the German authorities have continued to insist on the particularity of the German case. They essentially argue that Germany’s identity model is based on common and distinctive features which require an especially attentive preservation of the homogeneity of its population. A new reform of the law which seemed to nuance this view was launched in 2002, remaining however paralysed after the declaration by the Bundesverfassungsgericht of the unconstitutionality of its procedure of approval. France constitutes the opposite model. That is, a state that already in the last third of the nineteenth century became a country of immigration and asylum, much earlier on, therefore, than any other European state. Its early industrial and demographic revolution which, moreover, did not signify a massive rural exodus towards the new urban conglomerations, necessarily prompted the arrival of aliens to compensate for that French deficit. France thus established immediately a liberal immigration regime, presided over by republican principles. However, with the apparition of first signs of economic crisis in the twentieth century, and especially after the First World War, this regime was progressively restricted. It was only after the Second World War, when the country was again in need of a greater labour force, that the definition of a general

normative framework was envisaged, the government proceeding then to the draft of a general norm in order to provide new incentives for the arrival of aliens, while at the same time establishing the general principles governing the reception of immigration. The draft in 1945 of the Ordonnance relative aux conditions d’entre´e et de se´jour des e´trangers en France, as well as of the Code de la nationalite´, pursued this aim – that is, the definition of a general and complete normative structure. Likewise, the ties maintained with its former colonies, assured an intensive arrival of aliens into the French territory. However, French immigration policy was complicated by the country’s conflict-ridden process of decolonisation during the 1950s and 1960s, giving place to a special class of protected immigrants who were quasi citizens of France. Therefore, as against the controversial debate existing in Germany, the reality of immigration in France was never contested. Though, in the final analysis, France cannot be included among the so-called immigration states either. Such a conclusion cannot in fact be drawn from the type of treatment given in France to this phenomenon. Elements such as the increasingly restrictive policy carried out by the French government, especially after the economic crisis of the early seventies, the lack of a general orientation programme, illustrated by the constant oscillations of policy according to the changing government composition, or even the absence of a specific policy aiming the integration of the resident aliens, are all indicators of the country’s lack of a global vision concerning this question. Especially significant in this respect is the French republican system of integration which, by contrast with Germany, aspires to the absorption of every new-comer through a generous system of naturalisation. Although this is a system that in principle enables the reception of all aliens, it only does it under the condition that the new-comer becomes French. This in itself implies the suppression of all types of distinction and particularity, indicating ultimately an only partial understanding of the complexity of such a phenomenon. In this respect, the reflection on this system by Dominque Schnapper is interesting. Schnapper argues that the French tradition of integration of aliens has actually impeded the recognition of the phenomenon of immigration: ‘‘La tradition de l’inte´gration ‘‘a` la franc¸aise’’, selon laquelle on s’efforce d’inte´grer les e´trangers autour de valeurs ‘‘re´publiquaines’’ en les transformant progressivement en citoyens, a entretenue une ide´ologie nationale de l’enrecinement et de l’e´ternite´ franc¸aise qui empeˆchait de reconnaıˆtre le fait de l’immigration’’[20]. With respect to Germany and France, Spain represents the case of a country having incorporated only recently the phenomenon of immigration. Like other Southern European countries, Spain has witnessed a rapid development of immigration during the 1980s and 1990s, though very different factors have influenced this transformation[21]. In fact, many of its features still characterise it as a country of emigration, the question being thus often posed as to whether Spain is actually a country of immigration, given the still large number of Spaniards abroad. In any event, the end of the Franco era and the accession of Spain to the European Economic Community introduced this country to a completely new reality which includes the phenomenon of immigration. The approval of the 1978 Constitution inaugurated a new fundamental framework that imposed a different logic on public authorities, this affecting therefore as well the realm of immigration. Among the different normative reforms launched as a result, two ought to be underlined. These are the 1984 Asylum Act and the 1985 Aliens Act, which essentially reflect the incorporation of Spain into the European Communities,

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the reality of immigration in the rest of European countries thus influencing Spain’s normative approach to this question. This might in fact account for the fact that Spain adopted in 1985 a very restrictive norm to regulate the entry and stay of aliens into its territory, before even immigration was actually felt in Spanish society. Instead, its approach to asylum was rather conditioned by Spain’s immediate political past, this leading to the establishment of a rather generous asylum policy, which was nevertheless later restricted, by a reform of 1994. Likewise, Germany, France and Spain represent different kinds of legal structures which thus give place to distinct forms of intervention by the courts. In this way, the construction of the status of aliens has been carried out in each of these countries according to a specific logic and circumstances. Whereas German courts intervene according to a very comprehensive and systematic structure of fundamental rights and guarantees, the reasoning followed by the French courts is completely different. French administrative law is in fact a legal branch created essentially through the case law of the courts, the courts developing the principles guiding their intervention from the concrete situation with which they are confronted, trying thus to give empirical and technical solutions. In this sense, French administrative law has much more in common with the type of reasoning characteristic of common law systems than with continental ones such as in Germany or in Spain. Indeed, the Spanish courts are also conditioned by a type of abstract and systematic structure which was adopted by the 1978 Constitution, this text reflecting the constitutional experience of other European countries and, specifically, being to a large extent inspired by the German Fundamental Law. Essentially, the Spanish Constitution adopts the German conceptualisation of fundamental rights as objective principles, which in turn requires an interpretation of the constitutional system as a unity. The jurisdictional structure in these countries is thus also different. While a fundamental feature of France is the jurisdictional division between the juge judiciaire and the juge administratif, in both Germany and Spain the administrative courts form part of a single jurisdictional order and are in effect directly subordinated to the criteria set by the Constitutional Court. Instead, in France, the role of the Conseil Constitutionnel is minor, the establishment of such an institution having been much more controversial in France than in other states. In a country such as France, where the primacy of the law is understood as the direct expression of the sovereign will of the nation and the main pillar of the legal and political system, the introduction of such a control over the parliament was perceived as giving way to a ‘‘gouvernement des juges’’. Thus, the emergence in France of general principles in the sphere of immigration is rather the result of the participation of the administrative and the constitutional jurisdiction and, thus, in turn, of the respective categories of principles corresponding to each of these jurisdictions. In effect, unlike France, both Germany and Spain represent paradigmatic cases of constitutionalisation (the German experience actually being reproduced in Spain), ordinary courts becoming engaged in the same constitutional decision-making as the respective constitutional courts. The capacity of a constitutional court to facilitate constitutionalisation and to control the intervention by the ordinary courts depends on the existence of the constitutional complaints procedures, which exist in Germany and Spain but not in France. In the final analysis, thus, what this research intends to observe is whether the existence of such different legal structures conditions the actual protection conferred

on aliens or whether, instead, similar rights are developed through distinct mechanisms of protection. Delimitation of the object of analysis and structure In accordance with the existence of different legal and jurisdictional structures in each country, and also with the characterisation done above of the movement of constitutionalisation, the case law of different jurisdictions will be analysed here. That is, the case law of constitutional and non-constitutional courts, being all somehow placed under the impulse of constitutionalisation. In fact, constitutional courts are not the main actors in this process. Although they are indeed principally in charge of assuring the expansion of constitutional principles, other courts are also involved in it. In this sense, the selection of the case law is done here according to the respective national structures in each country and the greater or lesser role played by these jurisdictions in each case. Essentially, though, this research focuses on the constitutional and the administrative jurisdictions, the latter being the materially competent jurisdiction in the sphere of immigration, since this is a domain of public prerogatives. Likewise, the decisions presented throughout this work have also been selected according to the specific dimension of immigration that is analysed therein, that is, the criteria governing the concession of entry and permanence permits. These criteria express the sovereign and discretionary prerogatives of states and are determinant of immigration law. In this way, what this book ultimately tries to show are the limits progressively imposed on these state prerogatives through the intervention of the courts. In other words, the emergence of a protection for aliens, concentrating however on the aspects of this protection that affect the main premise on which immigration law is built – that is, the non-existence of a right to entry and permanence. For this reason, this research restricts its analysis to economic and massive migrations, other type of migration being thus excluded. These are, on the one hand, that of aliens who emigrate (or circulate) to another country simply in order to lead their lives differently in another place, not being therefore compelled by economic factors, but merely motivated by personal reasons; on the other, that of aliens who emigrate (or escape) to a place where they can live, since they cannot do this freely in the legal and political structure of the country which they abandon. According to this negative delimitation of the topic, this work concentrates on non-EC nationals immigrating into Germany, France and Spain for economic reasons. In order to show the evolution of the courts’ reasoning as regards the entry and permanence of aliens, a specific structure will be followed when presenting the court decisions, which will be moreover maintained throughout this book. It essentially tries to indicate how the courts depart in their reasoning from the denial of the right to entry and permanence, introducing however some kind of protection for aliens, and ending up questioning this initial fundamental premise. Indeed, the evolution followed by the courts is not complete, since the coexistence of two dimensions is ever present: the absence of a right to entry and permanence – this being exclusively a discretionary prerogative of the state – and, this notwithstanding, the conferral of protection on aliens on the grounds of their human condition. In this sense, the structure given to the courts’ reasoning does not only respond to chronological criteria. Although the judicial material has been selected and elaborated according to a gradual evolution of the courts’ decisions, the presentation of the judgments in this research is based on the combination of different logical principles.

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Likewise, the decisions of the supranational courts are not analysed in the context of the construction of immigration law by the courts. This construction, which is the object of the first part of this work, is presented as constituting a national process, the supranational courts having had a limited competence in this respect. The supranational case law is thus only presented in Part II, where the elements allegedly involved in this process are analysed. In this way, the examination of the supranational case law is only secondary, trying merely to determine whether it has nevertheless represented a factor of influence on national reasoning. The two supranational courts analysed here are the ECtHR and the European Court of Justice (hereinafter ECJ), the logical constructions built by both of them being presented in a parallel way, although the premises on which they intervene in the sphere on immigration are very different. Whereas the ECtHR has a territorial jurisdiction and is thus entitled to intervene in order to grant the respect of the rights recognised in the European Convention to every person within its jurisdiction, the ECJ has a limited competence in relation to third-country nationals, who in principle fall beyond the scope of the immediate aims of the European Union. The realisation of these aims has however led the ECJ to espouse a teleological interpretation of the law which has progressively expanded its sphere of competence. In this sense, the chapter on the supranational influence tries to show the different type of impact that these two courts may have had, while at the same time trying to reflect on the unexpected development towards which these different grounds of competence can actually lead. This book is thus divided into two main parts. The first part analyses the progressive process of conferral of protection on aliens, distinguishing in turn between precarious and emergent rights as the two aspects of this evolution. It analyses the cases of Germany (chapter 1), France (chapter 2) and Spain (chapter 3), and concludes with a short summary of the main features observed as regards the specific protection granted to aliens in these three countries (chapter 4). Essentially, while a trend towards a convergence in the results is observed, differences in the ways of achieving these similar outcomes are also evidenced. These four chapters are arranged following the same logical structure, trying thus to offer a pattern for the comparison which allows for an analysis of whether a similar evolution is followed by the different national courts, while at the same time evidencing the differences between these countries. Part II intends to represent an evaluation of the results obtained in the first part, by trying to deconstruct the process of conferral of protection on aliens. It thus aims to analyse, on the one hand, the elements and causes determinant of this process and, on the other, the similarities and differences observed between the national processes. These two objectives are simultaneously pursued through the examination of the three elements presented here: the supranational case law (chapter 5), the internal mechanisms of protection of fundamental rights (chapter 6), and the characteristics inherent in the judicial instrument as responsible in themselves for the emergence of a protection for aliens (chapter 7). Indeed, while the first and the last of these three elements (the supranational influence and the nature of the judicial instrument respectively) ultimately seek to offer an explanation for the existence of a convergence between the countries in the protection actually conferred on aliens, the second of these factors (the internal mechanisms of protection of fundamental rights) tries instead to elucidate the differences observed in the ways of conferring such a protection. It intends to interpret

such differences in the light of the specific domestic systems of protection and of the respective general legal structures from which the courts depart in their reasoning. Likewise, as in the first part of this book, the chapters belonging to the second part also follow the same structure. In their analysis, they go from precarious to emergent rights, trying thus ultimately to reinterpret the reasoning of the courts from the various perspectives of the possible elements having influenced this process. Essentially, the core idea expressed in this structure is the fundamental duality which characterises the reasoning of the courts. Although they accept the principle of sovereignty of the states as regards the entry and permanence of aliens into the national territories, they nevertheless assert the rights that correspond to aliens because of their condition of humanity, to the extent of ending up conferring in certain situations a right to entry and permanence. The conferral of such a protection is however only indirect and justified by the specific circumstances of each case, the premise of precariousness not being thus completely suppressed.

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PART ONE

Reconstructing the judicial process of extension of protection to aliens

1. Germany Tempering the denial of immigration through the constitutional guarantees of fundamental rights A. Precarious rights: the denial of immigration I. The formulation of the premise of precariousness 1. The confirmation of the general principle: the non-existence of a right to immigrate. Germany does not differ from other states when defining the fundamental structure of the legal status of aliens: it has adopted the general principle of denying the existence of a right of entry and of permanence for aliens. The exclusion of this right has become the fundamental premise in the legal response to the immigration phenomenon in Germany, as in all other Western countries. Rather than the right of aliens, it is therefore the right of the state to decide which aliens are allowed to enter and remain in the national territory. The case law of German courts represents in effect a confirmation of this reasoning, the Federal Constitutional Court having fully subscribed to it. For instance, in its seminal 1973 ‘‘Arab case’’ decision[22], the Court left no doubt as to the full validity of this premise. In this holding, involving the deportation of two members of the General Union of Palestinian Students in the wake of the terrorist attack on Israeli athletes at the 1972 Munich Olympics, the Court clearly affirmed this principle, before moving onto the more specific reasoning concerning the issue in question. In this way, the Court set the general basis for any further considerations[23]: that the concession of a permanence permit constitutes a prerogative of the State and never an obligation – only in exceptional cases, such as asylum[24], does the conferral of such permits become an obligation[25]. Therefore, the entry and permanence of aliens is directly subordinated to obtaining an administrative authorisation[26]. Consequently with this reasoning, the Aliens Act (both in its superseded version of 1965 and in the text of 1990) allows for the introduction of further restrictions such as geographical or temporal ones, once this permit has been obtained[27]. According to the courts, this mechanism is legitimate, as it is implicit in the acceptance of the general principle as defined above: entry and permanence of aliens as a discretionary concession of the State[28]. Once admitted into the territory, the alien is granted some constitutional protection, although not even then is the fundamental premise of precariousness (the nonexistence of the right of entry and permanence) completely altered. As the early decisions of the Federal Administrative Court stated, the mere lapse of time does not guarantee the right to renew the permit – that is, to stay in the territory. For instance, in its decision of 29 August 1972[29], the Federal Administrative Court considered that a denial of the renewal of the permit does not violate the fundamental principle of reliance or bona fides (Treu und Glauben)[30]. A similar principle is in fact implied in the 1990 Aliens Act, and the administrative jurisdiction – the main competent one in the sphere of immigration – has thus continued to confirm this reasoning[31]. The first interventions by the Federal Administrative Court in this field were indeed rigourously in line with this fundamental premise: it was the responsibility of the State to decide which aliens could be allowed to stay in the national territory. An early

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decision of 1962 is most expressive of this very restrictive initial trend of the Federal Administrative Court[32], in which the Court reaffirmed the prevalence of this principle over and above any other possible considerations. In fact, on this occasion, not only did the Court give priority to the right of the state over any possible right of the alien, but it actually went so far as to deny that the expulsion (that was ordered) would cause any serious harm to the marriage between the alien and the German national involved in this case[33]. The Court argued that the partners could always continue their life together in the country of origin of the alien, considering it natural for the (German) wife of the expelled alien to follow her husband[34]. Even if this early reasoning of the Court has clearly evolved since then by admitting the serious interference that the expulsion can represent for the families of the aliens affected, the Court has never ceased to affirm that the constitutional protection of family is in no way absolute[35]. Accordingly, given that this fundamental construction cannot usually be altered by the existence of other (aliens’) rights, this principle is confirmed even more emphatically when the question of the possibility of the first entry of the alien arises. The reasoning followed by the Federal Administrative Court in relation to the freedom of religion is illustrative of this idea. In a 1983 decision, the Court denied that an alien could be exempted from the obligation to have a visa on account of the religious functions that the alien (an imam) came to exercise[36]. In the view of the Court, the extension to aliens of the freedom of religion (Article 4 BL)[37] cannot alter the normal procedure of admission of aliens into the territory[38]. Furthermore, given that the right to freedom of movement is a right specifically reserved to nationals by Article 11 BL, the Federal Constitutional Court has reaffirmed the competence of parliament to directly regulate the entry and stay of aliens[39]. In doing this – delegating all the competence to set the conditions of entry and stay of aliens – the Court has rejected the possibility of playing a more involved role in this construction concerning aliens or of indicating any specific criteria, thus abstaining, in practice, from censuring the legislative intervention in this sphere[40]. 2. The affirmation of the specificity of the German case: Germany as a nonimmigration country. When restating this general principle prevailing in all legal orders, the German courts seem however to overcome its traditional justification. According to their reasoning, beyond the right of the state to decide what aliens are to be admitted into its territory, this being something consubstantial to and inherent in its sovereign prerogatives, a further reason is implied in the case of Germany: the specific circumstances surrounding its definition as a nation-state which render incompatible Germany’s conversion into an immigration country. In this way, the non-existence of a right of aliens to entry and permanence seems to be stated even more emphatically in Germany than in other countries. This non-existence functions thus as a claim and a requirement for the building and preservation of the identity of Germany as a nation, beyond therefore other considerations of more limited scope, such as those related to the necessity of controlling immigration flows. The official position of the German government vis-a`-vis its de facto reception of immigration has been one of forthright denial with regard to its possible characterisation as an immigration country. This position, which was affirmed with special emphasis during the first years of its reception of immigrants, has nevertheless been nuanced to some extent in recent times[41]. Essentially, though, the German government, together with an important segment of the legal scholarship, has continued to insist on the particularity of the German case[42]. According to this view,

the specific construction of Germany’s identity model, which would be based on a series of common and distinctive features characterising its society, makes an especially attentive preservation of the homogeneity of its population necessary[43]. In this sense, the incorporation of new population groups into German society cannot be done without a careful assessment of the impact that they may have in its composition and internal balance, in contrast to the case of other countries that are directly built on the very fact of immigration, that is, on the confluence of different national and cultural communities[44]. The German courts have confirmed this vision throughout their decisions. Especially insistent in this respect have been the interventions of the Federal Administrative Court, whose decisions – and especially so the early ones- were often introduced, as some sort of prelude to its legal reasoning, by remarks relating to Germany’s specific population and highly industrialised economic structure. In the Court’s view, such characteristics would exclude it from being an immigration country[45]. Also significant from this perspective is the Federal Administrative Court’s willingness to legitimise the temporary and rotary system of reception of immigrant workers – the Gastarbeiter scheme[46]. From the point of view of the Court’s reasoning, the administration remains legitimised through this scheme and entitled to carry out the policy necessary to preserve the features of a non-immigration country[47]. This is an ongoing debate, which has nevertheless re-emerged more recently with a special intensity and in new specific forms. The debate surrounding the approval in 2002 of a new Aliens Act is a clear example of this, since it has confronted German society once again with its own perception of immigration, forcing it ultimately to express its position in this respect. Another influential debate was the public debate surrounding the eventual recognition of voting rights for aliens in the late 1980s[48]. The specific initiative in this sense (in the more restricted field of the local elections) was undertaken by the Bundesla¨nder parliaments of Schleswig-Holstein and Hamburg[49], and, in so doing, they launched a heated debate involving German society[50]. The question on the constitutionality of such an initiative was finally brought before the Federal Constitutional Court, whose decision on this issue represents a key element in understanding the problem and concept underlying the reception of immigration in Germany, and thus going beyond the more specific question of voting rights[51]. The question before the Court was, more specifically, whether the notion of Volk (on which the Court constructed its reasoning) relies on a concept that is based on either descent or territoriality, and, therefore, whether it should now also include that part of the permanent resident community that is non-national. Thus, the question also raised was whether the immigration phenomenon should now start being regarded (also officially) as a permanent phenomenon with an effective impact on what has always been viewed as the traditional basis of German society. Clearly, this would have implications with regard to the possibility of aliens being able to legitimately claim their participation in the constitutional and political spheres[52]. While refusing to explicitly enter into this discussion, the Federal Constitutional Court proceeded to a systematic interpretation of the use of the term Volk in the BL and, in particular, in Articles 28.1.1 and 20.2[53]. In the view of the Court, the precise meaning of this term can be extracted and specified through this systematic reasoning, in order, ultimately, to give content to the principle of democracy, which the constitutional provisions establish as imperative for all levels of the state. According to

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the Court, from that systematic constitutional interpretation, it is only possible to conclude that the BL, when using the term Volk, refers exclusively to nationals[54]. The extension of voting rights undertaken by the parliaments of the Bundesla¨nder was consequently declared unconstitutional[55]. Following this same reasoning, the Court added that the possibilities of intervention are nevertheless not closed for the legislator, since the participation of non-nationals in the political sphere always remains open via the acquisition of citizenship, which is a competence of the legislator. With this decision, the Federal Constitutional Court, thus, clearly rejected taking into any consideration the full integration of non-nationals in the society of reception, other than through the traditional mechanism of citizenship[56]. In the final analysis, therefore, the Court refused to reflect on the transformations that society has undergone, which might lead to responses that differ from the traditional ones. II. The confirmation of precariousness in the abstract analysis 1. The analysis of the law: the explicit legitimisation of the general clause of general interests. As a subsequent step in the reasoning developed here, consideration will now be given to whether the courts, through their jurisprudential construction, besides denying the existence of a right of aliens’ to entry and permanence, also grant practical effectiveness to this principle. That is to say, it needs to be discussed whether mechanisms are established through the case law, in order to assure the state’s right to determine its immigration policy and to, as a result, impede the entrance and permanence of unwanted aliens in the territory. In the case of Germany, however, precariousness, as this is defined here, was not really constructed through isolated administrative measures to keep unwanted aliens out of the territory. Its effectiveness was rather directly granted by the legitimisation of a more global approach – the entire structure and coherence of immigration law, based on the discretionary criteria of the administration. This was at least the case of the system resulting from the 1965 Aliens Act, which provided for vast discretionary powers. The very broad terms of ‘‘public interests of the German Federal Republic’’, contained in the fundamental general discretionary clause of the law, were indeed indicated as the only determinant criteria upon which the authorisation of aliens’ entrance and permanence, or even – although to a lesser extent – their deportation, would be decided[57]. As provided for in the main general clause of the 1965 Act (Article 2), aliens’ permanence in the territory was to be excluded if their presence could represent harm to national interests. This reasoning was embodied in the so-called Negativschranke, or negative limits, in which it was stated that the administration was obliged to refuse the permit. Only when no harm to national interests could be inferred from the analysis of the material circumstances, could the administration then decide in accordance with its discretionary prerogatives. The case law of the Federal Constitutional Court directly legitimised this whole construction. First, it legitimised the 1965 general clause of ‘‘harm to national interests’’, although the clause did not give any precise criteria for these to the administration. Indeed, given that no further indications were detailed in the law, the specification of this notion was left entirely to the administration. Second, it also legitimised the subsequent possibility (once no harm to national interests was thought to exist) for the administration to grant the permit, according to its discretionary prerogatives only.

In its key decisions of 18 July 1973 and 26 September 1978[58], which constitute the basis for all later jurisprudential construction, the Federal Constitutional Court departed from the premise of the constitutionality of these broad general clauses. Despite the general terms of the clause on deportations brought before the Court in 1973 (‘‘Palestinian’’ decision), the Federal Constitutional Court upheld its constitutionality. This provision (Article 10 of the 1965 Act), after listing ten specific grounds for deportation, granted residual authority to order deportation when ‘‘an alien’s presence harmed a substantial national interest’’ (erhebliche Belange der Bundesrepublik)[59]. In the view of the Court, a more precise definition of the criteria set, in this last case, for deportation orders could be deduced from a systematic interpretation of the law, in a way that would insert this provision in the general coherence of the system[60]. Thus, in light of the standard that could be inferred from the list of specific deportation grounds in the ten preceding paragraphs, this legal provision was sufficiently definite to satisfy the requirements of the rule of law[61]. Furthermore, the Court argued that any specification of the provision’s general terms was also to be achieved through their implementation by the administration. In that respect, the principle of proportionality, which constrained officials in their intervention, constituted an additional guarantee. According to the Court, this principle requires that an impingement on individual liberty be necessary for the protection of the public interest, the chosen means being reasonably related to the goal to be achieved, and the public interest being balanced against the private interests of the individual, including, in the deportation context, the consequences of the deportation to its economic, professional and personal existence. Thus interpreted, the terms of the general clause were held to be consistent with the rule of law[62]. Some years later, in its decision of 26 September 1978, the Court confirmed this general reasoning, this time in relation to the widely criticised generality of the provision regulating the renewal of permits. As in the previous case relating to deportation, the Court sustained the constitutionality of such a general formula contained in Article 7 of the 1965 Act. It explicitly added, however, a new legitimating factor to the provisions’ vague terms: the ulterior control exercised by the judiciary, which, in the view of the Court, represented a further possibility of compensating for the lack of definition in the law[63]. 2. The adaptation of the law: the implicit reformulation of the Bestimmtheitsgebot. By confirming the legislative conferral of wide discretionary prerogatives on the administration, the courts ultimately consolidated the state mechanisms for refusing entry to or continued stay in the territory to unwanted aliens. In this way, in the system resulting from the 1965 Aliens Act, the entrance, permanence and – to a more limited extent – deportation of aliens remained subordinated to the practically uncontrollable evaluation of the administration. At the same time, though, and equally importantly, the legitimisation by the courts of the terms of the 1965 Act had an impact on a more abstract level of reasoning. Specifically, it affected the understanding of one of Germany’s constitutional requirements, the Bestimmtheitsgebot. No clear definition of this requirement – the consequence of the more general principle of the rule of law (Rechtstaatsprinzip) – can be found in the text of the BL. The Federal Constitutional Court’s case law, however, evokes a cogent claim for its existence and this, together with legal scholarship, has resulted in a progressive construction and consolidation of the principle.

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According to the scheme defined in the legal scholarship, different specific grounds for the Bestimmtheitsgebot are to be found throughout in the text of the Constitution[64]. One of these grounds is represented by the principle known as Vorbehalt des Gesetzes, which requires that certain measures be adopted exclusively by the legislator, as the only directly democratically legitimised power. Consequently, the administration can then only intervene with the necessary legislative authorisation. It is therefore of greatest importance that the delegation by the legislator to the executive is performed through a precise and detailed norm. As also argued by the scholarship, another element which ought to be taken into account in order to understand the notion of the Bestimmtheitsgebot is the principle of the priority of the law (Vorrang des Gesetzes). According to this principle, the executive power is subordinated to the criteria set by the legislator[65], which also then implies the need to define with precision the legislative criteria. Otherwise, the executive would be de facto legitimised to act without any particular prescription. Only when the legislator has not intervened is the executive free to act according to its own criteria, the only limits then being those set directly by the Constitution. Instead, if the legislator has intervened and has thus affirmed its competence in a specific area, but only through the introduction of undetermined legal concepts (unbestimmte Rechtsbegriffe, as the general discretionary clause of the 1965 Aliens Act laid down), the administrative action is (to be) judged according to the (constitutionally consistent) law that offers some guiding criteria. In this sense, it also becomes in this case necessary for the legislator to proceed to a clear indication of what the criteria for the executive should be in its intervention, which in turn allows the control of this administrative intervention by the judiciary. According to these parameters, in the case of the general clause of the 1965 Aliens Act – in which the ‘‘harm to national interests’’ were the only criteria indicated, the question of whether the legislator’s intervention conformed to this constitutional requirement appeared, therefore, very questionable[66]. As it was then argued by the scholarship, the subsequent legitimisation by the Federal Constitutional Court of this lack of precision undermined the Bestimmtheitsgebot’s constitutional requirement. Furthermore, to a certain extent it signified the formulation of a new ad hoc constitutional principle for the more specific field of immigration. Indeed, through its reasoning[67], the Court admitted the delegation of legislative power to the executive power, and it conferred on the judiciary the final responsibility of compensating for the lack of precise criteria of the Act, this latter conferment exceeding the limits of the courts’ competence. It is in precisely these two respects that the Federal Constitutional Court decision was strongly criticised. As the Court argued on this occasion, there is, in fact, a difficulty inherent in the necessarily abstract and general character of the law. That is, the difficulty to determine the specific degree of precision that, according to the Bestimmtheitsgebot’s constitutional principle, can be expected from the law. The Federal Constitutional Court based its justification for the lack of precise criteria regarding the provisions of the 1965 Aliens Act on this necessity for abstraction. Given that this is especially so, reasoned the Court, in the sphere of immigration due to the particular complexity of this field, it is impossible to specify these criteria in advance[68]. Following this reasoning, and as the Court developed its arguments further in this decision, the Bestimmtheitsgebot principle takes the form of a notion with different degrees. That is to say, it becomes an adjustable principle, depending on the precise

circumstances in question, its degree remaining very low in the case of immigration[69]. When analysing the 1965 Aliens Act’s systematic structure, though, it is possible to detect a certain will on the part of the legislator to restrict the prerogatives of the administration. That is to say, a gradual system of consequences for the alien was to a certain extent foreseen in the law, according to the degree of harm that its presence might cause the national interests[70]. In the 1978 decision, instead, the Federal Constitutional Court seemed to omit the deliberate legal separate treatment of these different hypotheses. It simply affirmed the constitutionality of the provision of the law on the renewal of permanence permits (Article 7 of the 1965 Act), despite the lack of precise criteria contained in it, by directly transferring the reasoning held in 1973 in relation to the use of the general clauses in the case of first entrance and deportation[71]. According to the Court, the limits for the administration already stated in relation to these other clauses should now be applied in the case of Article 7, since this provision did not foresee any specific criteria for the renewal of permits. In this way, this general clause could also be considered as respecting the requirements set by the Bestimmtheitsgebot. From this point of view, it could in fact be argued that the Court’s reasoning resulted in more rigourous consequences than might have been expected from the text of the law itself: it actually forced the whole logical structure of the law, which established a gradual scale of consequences, depending on the degree of powers that it wanted to give the administration[72]. Finally, in relation to the second of the main points of this 1978 decision, that is, the functions that the Federal Constitutional Court seemed to confer on the judiciary, the reasoning followed by the Court also raised serious concern among scholars. According to the Court, the subsequent control of the administration by the judiciary would represent a further way of compensating for the lack of precise criteria in the law. In reaction to this approach, though, scholars argued that this delegation of powers to the judiciary would signify an excessive concession of responsibility, thus taking courts beyond the functions that correspond to them. Ultimately, it would lead to an imbalance in the traditional principle of separation of powers[73]. III. The realisation of precariousness in judicial practice 1. The reluctance to restrict the notion of national interests: the consolidation of wide administrative prerogatives. According to the previous analysis, the acceptance by the Federal Constitutional Court of the lack of legal definite criteria signified, in practice, the subordination of aliens’ rights to wide administrative prerogatives. In the reasoning of the Court, though, the judicial implementation of the 1965 Aliens Act would imply an attribution of exact meaning which would to some extent compensate for its imprecise and vague character; it would ultimately restrict the scope of the term ‘‘national interests’’. In any case, this judicial intervention would determine the limits that could be set for the administration in the field of immigration. In the following, thus, an analysis will be made of the way in which the courts treated this notion of national interests, after this general clause was legitimised – according to an abstract examination of its constitutionality – by the Federal Constitutional Court. More specifically, an examination of the arguments accepted by the courts as falling under the scope of national interests will be undertaken in order to verify whether the broadness and generality of the law is, thus, finally counterbalanced in its implementation.

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In reality, already the expression ‘‘harm to national interests’’, as employed in the clause, seemed to place aliens law within the specific sphere of administrative police law, whose most fundamental and immediate aim is the preservation of public order. As such, the administrative measures giving form to this specific area – such as, for instance, expulsion – can be viewed as a coherent whole and should thus remain structured and subordinated to its realisation. Indeed, the analysis of these judicial interventions – mostly carried out by the Federal Administrative Court, the court with the widest competence for this stage of implementation of the general clause[74] – show how the idea of preservation of public order in fact permeates the reasoning underlying the concession or refusal of administrative permits to aliens. From this perspective, the courts’ specification of this term’s concrete meaning (national interests) should therefore represent the delimitation of the precise aims of aliens law. Moreover, it should delimit the specific spheres in which the administration can legitimately intervene and, thus, the powers to which it is entitled, as well as, more generally, contribute to the overall understanding of this area of law. In this sense, the analysis of the courts’ interventions should make it possible to see whether the administrative prerogatives do in fact conform to the objective of the preservation of public order, or whether their aim is different – or broader. In the final analysis, thus, it is this type of argument – the kind accepted by the courts for the imposition of such administrative measures – which determines a wide or narrow understanding of the notion of national interests. The non-respect of visa obligations is for instance directly foreseen by the law as justifying the denial of the respective permits as well as, therefore, the imposition of measures of expulsion. The courts have always confirmed the law in this respect by arguing that the aim of preservation of public order and national security is immediately affected in such cases[75]. General and special prevention, in the cases where aliens commit crimes, is another of the arguments coming under the more general aim of preserving public order, despite the scholarship critique of this reasoning. In the literature, which differs to the position taken by the courts, it is argued that the nature of these arguments to expel aliens falls under criminal – and not administrative – law[76]. Both the Federal Constitutional Court and the Federal Administrative Court have, however, legitimised the possibility of expulsion directed towards preventing any further commitment of crimes, either by the alien in question (in the case of special prevention) or by the rest of the alien community (in case of general prevention)[77]. Likewise, according to the courts, arguments concerning the national economic situation can justify the denial of entry and permanence permits[78]. In the view of the Federal Administrative Court, also in cases of international agreements (directed to facilitate the entry and permanence of the nationals of each of the signing countries in the territory of other countries), the administration is freely entitled to reject the concession of permits according to its evaluation of the national economic situation. In its reasoning, the Federal Administrative Court has sometimes admitted, as justification for the permit refusal, arguments based directly on the government’s definition of its immigration policy. This is the case, for instance, in its decision of 29 April 1971[79], where the Court connected the concession or denial of permits to aliens with the realisation of the state’s immigration policy. The administration is thus legitimised to act according to its own evaluation of the needs posed by such a policy

and therefore to refuse permits with the objective of stopping new arrivals of aliens in the country[80]. 2. The justification of the law’s indefinite character: the affirmation of the exceptionality of immigration. Following the reasoning developed in the preceding section, the judicial implementation of the law consecrated the expression ‘‘national interests’’ as an extremely flexible notion. In this sense, the judicial interpretation of the general clause did not actually compensate for the lack of precision in the law, as the Federal Constitutional Court had intimated it would do. Although the case law does offer some material indication of what should be understood under the general clause, the range of arguments admitted by the courts did not achieve a degree of coherence and specificity required to counterbalance its widely criticised scope and general terms. Further, the admission of such a wide range of arguments resulted instead in the confirmation, through its new formulation, of such a general character. Therefore, the lack of definiteness of the clause, as initially legitimised through the abstract reasoning of the Federal Constitutional Court, was reaffirmed through (and despite) its implementation. Basically, given the wide variety of reasonings admitted by the courts under the term ‘‘national interests’’, the courts’ implementation of the general clause did not lead to a delimitation of the administrative prerogatives[81]. From this point of view, this case law could be understood as a prolongation of the Federal Constitutional Court’s reasoning: that is, fundamentally, the necessity for flexibility and, therefore, for discretionary prerogatives for the administration in the specific sphere of immigration. Particularly significant from this perspective is the Federal Administrative Court’s decision of 27 September 1978[82], in which the Court proceeded to confirm the general principles already stated by the Federal Constitutional Court. The Federal Administrative Court here confirmed the legitimacy of the general clause contained in the 1965 Aliens Act, arguing for the need for a wide definition of the term ‘‘national interests’’. Endorsing the reasoning developed by the Federal Constitutional Court, the Court stated that the particularity and complexity of the immigration field did not allow for a precise specification of the content of these ‘‘national interests’’ by the legislator. Ultimately, thus, and according to the decisions referred to here, the bottom line in the courts’ definition of the term ‘‘national interests’’ seems to be the will to preserve Germany’s official stand in immigration, that is, in the final analysis, the denial of its definition as an immigration country. Illustrative in this respect is the above mentioned decision of 29 April 1971, in which the Federal Administrative Court finally explicitly authorised the use of the administrative concession of permanence permits in order to carry out the state’s immigration policy[83]. B. Emergent rights: the impact of the constitutional systematic reasoning I. The introduction of procedural limits to precariousness 1. Specifying the notion of national interests through the balancing of interests: limits to the general clause. As already seen throughout the analysis of precarious rights, the general clause of the 1965 Aliens Act’s found its legitimisation both in the case law of the Federal Constitutional Court and of the Federal Administrative Court, despite its broad and general terms. This was directly enacted by the Federal Constitutional Court[84], in its abstract analysis of the law, which declared that the clause was definite enough, and thus consistent with constitutional requirements, on the basis of the possibilities that existed for further specification. According to the Court, one of

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these possibilities would, for instance, be the systematic interpretation of the Aliens Act’s provisions. This lack of precise definition was, in contrast, justified by the Federal Administrative Court only indirectly[85], in its subsequent implementation of the clause. That is to say, the wide variety of arguments admitted by the Federal Administrative Court under the term ‘‘national interests’’, resulted in a practical confirmation of that lack of precision instead of specifying its contents. Notwithstanding this, when the question of the general clause’s legitimacy was not itself at stake, a different reasoning seemed to appear in the logic of the Federal Constitutional Court. It was a reasoning that, in opposition to the previous and general one, seemed to allow, and even require, a certain degree of delimitation of the broad terms of the clause. The need for specific solutions and protection – put before the Federal Constitutional Court through the mechanism of the constitutional complaint, the Verfassungsbeschwerde – represents this other type of situation, and it sets off a different reasoning in the dynamic of the Court. However, it did not represent an explicit rupture with the previous reasoning. Rather, the question of the general clause of national interests was again raised though, on this occasion, from a different perspective. The abstract analysis of the general clause was not, thus, an issue in this kind of situation[86]. The main issue at stake was, rather and more simply, whether to extend constitutional protection to aliens or not. However, no clear guidelines for this are to be found in the BL. Moreover, since the entrance and – to a lesser extent – permanence of aliens were traditionally considered as a ‘‘gracious concession’’ by the state, the question of the conferral of constitutional protection was always controversial. It was also viewed as a mere discretionary administrative prerogative, and not as a right. Only in those cases more evidently in need of protection was the extension of protection to aliens admitted as deriving directly from the general constitutional conception, constructed around the idea of human dignity[87]. Among the different administrative measures in immigration law, deportation orders represent a field that is generally considered as more legitimately deserving of protection. The strong impact and further consequences of these measures for the status of the persons affected by them constitute their main feature[88]. It is thus this consensus on the need for protection, especially evident in the field of expulsion, which allowed for the implementation of constitutional principles by the Federal Constitutional Court. Thus, immigration, as well as, more specifically, the general clause of the Aliens Act’s, was in this way introduced into the logic of constitutional parameters. For these reasons, two main issues have prevailed in the activity of the Federal Constitutional Court in the field of deportations. Specifically, these are the possibility of the immediate execution of deportation orders, because of the extremely severe consequences that it has, in both procedural and substantive terms, for the person who is the object of such a measure. Second, the deportation of aliens married to nationals, in this case the status of the German national being the one considered more particularly entitled to protection. In such circumstances, the Federal Constitutional Court has in fact engaged in a more rigourous scrutiny of the content of the term ‘‘national interests’’, this being the mechanism that justifies expulsion. The Court is not contrary to the effective realisation of the deportation: the protection conferred by the Court is in no way absolute. The Federal Constitutional Court thus does not exclude the possibility of

expulsion, not even in this type of case, in which the special relevance of private interests affected therein has been generally admitted. Expulsion therefore always remains a possibility, needing however to be reconciled with the private interests of the alien. With this reasoning, therefore, the Court simply makes compulsory the more accurate demonstration of the existence of such national interests. Thus, their priority over private interests at stake needs to be effectively argued. This reasoning finds its justification in the constitutional logic of proportionality, which, in turn, constitutes a specification of the more general framework of the rule of law (Rechtstaatsprinzip). The administration is in this way effectively requested to proceed to balance the different competing interests. The Federal Constitutional Court developed and explicitly adopted, in the ‘‘Arab case’’, its reasoning on the question of proportionality in the field of immigration[89]. Specifically, the Court, in the ‘‘Arab case’’ decision, established this reasoning in relation to the order for the immediate execution of an expulsion. The contested measure relied on the alien’s possible involvement in the terrorist attacks during the Munich Olympic Games. As the Court stated, in order to allow the effective and immediate deportation of an alien, the national interest in the deportation has to prevail over the private interests of the alien to stay in the country. Further, it is the responsibility of the administration to prove the real existence of such national interests and their priority[90]. In this particular decision, the Court considered that the administration had not fulfilled this requirement sufficiently[91]. The administration had indeed tried to argue that only a relaxed standard of proof was necessary in the case, on the basis of the preventive nature of the immediate execution. Thus, in the view of the executive, the mere suspicion of the alien’s involvement in the attacks was enough to proceed legitimately to the immediate execution of the expulsion. The Federal Constitutional Court censured this line of thought[92]. In its reasoning, the Court argued that the rules concerning the immediate execution could not be less strict than those concerning the deportation itself. In fact, they should actually be even stricter, requiring the Court, in order to proceed to the immediate execution, to demonstrate the existence and proof of a special national interest (besonderes o¨ffentliches Interesse)[93]: mere suspicion was therefore not enough. According to the Court, it was actually necessary to prove the existence of a risk of effective realisation of the danger that the deportation was intended to prevent, before the conclusion of the main judicial case on the deportation order. Moreover, referring to the evaluation by the administrative court, the Federal Constitutional Court considered that it had not sufficiently contemplated the possible result that the immediate execution could have had for the alien, of severe and irreparable prejudices (schwerwiegenden und irreparablen Nachteile)[94]. In effect, in its analysis, the administrative court had departed from the provisory nature of the immediate execution, whereas, according to the Federal Constitutional Court, expulsion from the German territory of a long-term resident alien could have severe and determinant consequences for him/her[95]. In the final analysis, according to the Court, the determinant question and criteria underlying the administration’s decision to order the immediate execution of the expulsion, should have been whether the permanence of the alien on German territory was tolerable until the conclusion of the main process, rather than whether his/her presence was in general admissible[96].

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Finally, in relation to the procedural rights of aliens, the Court added that these rights would also be diminished by the impossibility of being present at the main process (particularly in the oral hearing) implied by the immediate execution of the expulsion[97]. 2. Reintroducing interim relief: limits to the exceptionality of immigration law. Starting with the initial and abstract acceptance by the Federal Constitutional Court of the general terms of the 1965 Aliens Act, this analysis of the Court’s case law has tried to evidence a gradual transformation in its reasoning. What is shown is that the implementation of the constitutional requirement of proportionality, in trying to reconcile the private interests of the alien with those of the state, resulted, albeit indirectly, in the need for a more precise definition of the term ‘‘national interests’’[98]. This resulted, in the final analysis, in the setting up of limits to the – initially virtually unrestricted – administrative prerogatives[99]. However, it is interesting to note that as well as setting up specific limits for the administration through the proportionality test, the impact of the ‘‘Arab case’’ decision seemed to introduce a further dimension. In effect, not only did the Federal Constitutional Court seem to limit the wide range of administrative prerogatives according to the more extreme need for protection that was perceived in some situations; it also seemed to extend the implementation of constitutional reasoning on a more general basis, introducing immigration into the global framework of constitutional principles. In this way, the rule of exceptionality, on the basis of which immigration law had been implemented, was here censured. Particularly significant from this point of view is the re-establishment by the Court of the principle of suspension. The prevailing administrative practice in the field of immigration had resulted in an understanding of immigration law as to some extent exempted from general constitutional requirements, overturning this fundamental and distinctive principle of German law: the suspensive effect inherent in administrative judicial review, which represents a major guarantee for the citizen before the administration. In Germany, the privilege of the administration of the immediate self-execution of its acts is very much limited by the mechanism of interim relief, inherent in judicial review, in the form of suspension of the execution. An application of stay can be presented by the citizen affected by the administrative measure, such that in this definition of the German system, the rule can become the suspension, and the exception an immediate execution. It is, however, possible to alter this scheme, by legislative decision, as well as by a decision adopted by the administrative authority that has enacted the measure[100]. In administrative practice concerning the expulsion of aliens, this scheme had simply been de facto overturned, the practice before this decision being that the administration would generally proceed to the immediate execution of deportations without any further requirement. The ‘‘Arab case’’ decision thus represented a rupture with this practice. That is to say, the intervention of the Federal Constitutional Court signified the confirmation of the constitutional value of this principle of suspension[101], as well as, more fundamentally, its extension to the sphere of immigration[102], to the extent of representing the consolidation of a further stage in the reasoning of the Court and, ultimately, in the construction of an alien’s constitutional status. In effect, according to the Court, the principle of suspension would actually be a direct manifestation of the right to effective judicial protection (recognised by the BL in

its Article 19.4)[103]. In this sense, the Court’s statement on the full validity of this principle, also in the field of immigration, would represent an extension to aliens of this right. It would finally represent the confirmation of the universal character of this right as declared by the Constitution, as well as the introduction of immigration into the general German scheme of fundamental rights. From this point of view, the limits set by this decision to the prerogatives of the administration go beyond the more specific restrictions introduced by the principle of proportionality. The emergence of an alien’s status as the holder of fundamental rights, and entirely protected, therefore, by the system of constitutional guarantees, implies a complete redefinition of the action of the administration. In addition, it suggests a completely new perception of the phenomenon of immigration. Precariousness, as defined here, that is, as a status fundamentally subordinated to administrative prerogatives (to the extent that the permanence of the alien depends entirely on the concession of an administrative authorisation), thus becomes essentially limited. Another sign of this change of perception, and consequent limits to precariousness, was the rejection that this decision might have implied of the kind of arguments – until then generally admitted – upon which deportation orders were normally adopted. That is, arguments such as general prevention in order to justify expulsions after the commitment of criminal offences[104]. Although not explicitly condemned by the Federal Constitutional Court, this decision could represent a first censure of this type of reasoning, rejecting it for the more limited sphere of immediate execution of expulsion[105]. Notwithstanding, the question that necessarily then appears is whether this conferral of constitutional protection, affirmed here by the Federal Constitutional Court for the sphere of deportation, is however also to be extended, with general character, to all the areas comprehended in this global status of the alien. That is, whether other more contested areas of that status, such as permanence, or even entrance (traditionally considered as less legitimately entitled to protection or rather, more directly, excluded from that protection) also remain, consequently, covered by this reasoning of constitutional protection[106]. This was indeed the general claim among a large sector of the legal scholarship. The 1965 Aliens Act was strongly criticised for having directly suppressed (in its Article 21.3) the suspensive effect in cases involving the request for permanence permits[107]. Whereas, for the case of deportations, the overturning of the rule of suspension was imposed de facto, that is, by mere administrative practice, in the case of permanence, the situation was different. It was the law itself that exempted the otherwise generally more protective reasoning – that is, the suspensive effect for the review of administrative acts[108]. This fundamental difference between the two situations (expulsion and permanence) explains the reasoning of the Federal Constitutional Court on that occasion. The Court proceeded to censure the overturning of a general principle by mere administrative practice. Instead, since in the case of permanence, the suppression of the suspension principle was foreseen by the law itself, the Court abstained from entering into the evaluation of the constitutionality of Article 21.3 and simply assumed its conformity with the BL[109]. It is also worth noting in this context the solutions that the Federal Administrative Court had by then already anticipated in relation to the interim relief of aliens in the field of permanence permits. This Court, departing from the premises enshrined in the law (in the 1965 Aliens Act, in combination with the Verwaltungsgerichtsordnung,

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the Act on administrative courts), had already developed several mechanisms to try to compensate for this lack of protection. The Federal Administrative Court had done this, however, from a completely different perspective than the one prevailing in the analysis of the Federal Constitutional Court. That is, a very practical perspective that was not so much focused on the constitutional systematic structure of fundamental rights and constitutional principles, but on the necessity of specific and technical solutions. Its aim was, therefore, not the evaluation of the constitutionality of Article 21.3 of the Aliens Act, but simply the conferral of interim relief, according to the legal framework foreseen in both the Aliens Act and in the Verwaltungsgerichtsordnung[110]. The Federal Administrative Court’s decision of 18 December 1969 is emblematic in this respect[111]. On that occasion, the Court deduced different types of interim relief for aliens through a combination of the different existing administrative provisions in that sphere. According to the Court, when permanence permits are requested[112], the reintroduction of the suspensive effect in specific situations is always possible through the intervention of the courts (as established in Article 80.1.5 of the Verwaltungsgerichtsordnung), despite the neutralisation of the rule of suspension by Article 21.3 of the 1965 Aliens Act[113]. In this sense, it could be argued that the administrative courts, in this specific field, anticipated the constitutional reasoning, by to some extent compensating for the situation of aliens’ special vulnerability. The later case law of the courts insists on the need to assure strong formulas of interim relief for the specific field of immigration. New areas that have been progressively developed in immigration law in recent years have indeed offered the courts the possibility to introduce new forms and ways of expression of this general reasoning. The entry and permanence of alien minors in Germany, as one of the main topics in the case law after the 1990 reform, has, for instance, been one of the spheres where the courts have further developed and consolidated this principle. Two 1994 decisions of the Federal Constitutional Court, of 13 October and 6 December respectively, are for example illustrative of the adaptation of the suspensory effect to new situations. As the Court argued in these decisions, the duty of the state to ensure the well-being of the children obliges it to assure the suspension of the administrative orders of return to the countries of origin until the main judicial process has been completed[114]. II. The consolidation of substantive limits to precariousness 1. Grounds for a global construction of aliens’ constitutional status: Article 2.1 as Auffanggrundrecht. As introduced above, once a first or more immediate protection has been conferred on aliens, the question that subsequently arises is the possibility of extending this initial protection to other areas, where the consensus on the legitimacy of this extension is less clear. Indeed, as also seen in the previous section, this initial protection recognised by the courts to aliens was conferred on a very restricted basis, according to the criterion of the degree of protection effectively needed. In this sense, only deportations – the situations considered as most extreme – were covered by this constitutional logic of protection. This, at least, seemed to be the reasoning of the Federal Constitutional Court in its ‘‘Arab case’’ decision. Nevertheless, some of the elements introduced by the Court in this same decision seemed to give ground for the development of wider reaching constructions concerning alien status: specifically, Article 2.1 BL, as interpreted by the Court in this decision[115].

In effect, with respect to responses such as those offered in the sphere of procedural protection by Article 19.4 BL, Article 2.1 represents a broader dimension. It indicates the introduction, for the first time, of a general constitutional ground for the construction of a global constitutional status for aliens[116]. Article 2.1 BL was consolidated as the general principle on freedom of action in the 1957 Elfes decision[117]. Until then, consensus on the precise meaning of this constitutional provision had not been reached in the legal scholarship. The Court, in this decision, clarified the existing division of opinions and consecrated a broad notion of freedom of action[118], thus proclaiming it as the general fundamental right or Auffanggrundrecht. According to its reasoning, Article 2.1 does not only protect the most basic essence of human dignity, but it also, and fundamentally, regulates the different manifestations that this general freedom of action can have in relation to any human activity[119]. Thus, when for a specific sphere, no special regulation exists granting protection against eventual state interference, the general principle of Article 2.1 becomes effective. From this point of view, this decision achieves the integrity lacking in the constitutional structure, thus consecrating it as a complete system of fundamental rights, with no gaps in its mechanism of protection. However, according to the Court, this principle can also be restricted not only by other constitutional principles directly foreseen in the BL, but also by any norm that derives, directly or indirectly, from the constitutional system[120]. The procedural consequence of this Federal Constitutional Court’s interpretation is the conferral, on every person, of the constitutional mechanism of the Verfassungsbeschwerde. Through this mechanism, all alleged violations of this right, by a norm in principle contrary to the constitutional system, can then be invoked before the Court. Only if the norm is recognised as effectively unconstitutional will the freedom of action be declared violated. The emergence of such a right is consequently of greatest relevance for the specific field of immigration, where – especially so in the system resulting from the 1965 Act – no clear constitutional guidelines existed on what kind of protection was to be conferred on aliens. Article 2.1 represented the general grounds for the provision of an alien’s global constitutional status[121]. In the reasoning concerning this right in the ‘‘Arab case’’ decision, the Court implemented the previous constitutional judicial construction of general freedom in the more specific area of immigration[122]. In this way, Article 2.1 comes to represent the mechanism of extension of specific fundamental rights to aliens. This seemed at least to be the argumentation followed by the Court when proceeding to the extension to aliens of rights such as effective judicial protection[123], and of family protection[124]. Although the Court departed, in its decision, from the general denial of constitutional protection of freedom of movement in the case of aliens[125], it nevertheless affirmed that non-nationals are entitled to some type of constitutional protection through the mechanism implied in Article 2.1. According to the Court, the restricted definition of freedom of movement by Article 11, as belonging only to nationals within the German territory, does not exclude the application of Article 2.1 in relation to the permanence of aliens in the territory[126]. The precise meaning and reach of this statement was, however, the object of intense debate among legal scholars. Some went as far as to interpret it as the extension, by the Federal Constitutional Court, of some kind of limited freedom of movement to aliens, despite the explicit reserve of Article 11[127]. Others, instead, conceded a more limited impact of the Court’s statement, considering that it neither altered nor questioned

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in any way the full validity of Article 11 as set out in the Constitution[128]. Rather, this statement simply reaffirmed the universal character of freedom of action, thus representing a way to extend other rights that are not explicitly reserved to nationals regarding the permanence of aliens on national territory[129]. 2. The definition of fundamental rights as belonging to aliens: Article 6.1 as the prevailing construction. Many questions posed by the introduction of Article 2.1 into the sphere of immigration remained open after the ‘‘Arab case’’ decision. Some of these questions concerned, for instance, the precise degree of protection conferred. That is, whether, once the specific right was recognised to aliens, this protection was the same as that enjoyed by nationals. Others related to the specific sphere to which this protection extended. In other words, whether all areas were affected by this universal character of freedom of action, aliens thus always being included under its protection, or whether some other areas, due to their specific nature, remained reserved for nationals. The Federal Constitutional Court only proceeded to answer these questions slowly, implicitly and ‘‘on request’’, as more precise problems concerning specific rights were brought before it. It is thus only the direct handling by the Court of the specific need for protection in the different domains concerning aliens that has given rise to a more accurate definition of the content and reach of Article 2.1. In other words, it is only through the direct implementation by the Court of Article 2.1 that the precise relationship between this general freedom of action and the other specific fundamental rights is provided for. The question of the extension of specific fundamental rights has in fact been repeatedly brought before the Court, thus enabling it to progressively construct its reasoning on this point, as well as, in addition, providing the Court with the opportunity to allow for a global alien status to emerge. The right to due process, for instance, as already analysed[130], is one aspect of this. More generally, and less specifically resolved by the Court, the question on the extension to aliens of the freedom of movement was also examined in the ‘‘Arab case’’ decision[131]. The right to freely choose one’s professional occupation, as recognised in Article 12.1 BL[132], was also one of the rights that allowed for, in the later case law of the Court, a more specific delimitation of the reach of Article 2.1. It was only at this point that the Court clarified its precise stand on this aspect[133]. It is, however, the right to family protection, as foreseen in Article 6.1 BL[134], clearly prevailing in the case law of the Court concerning aliens, which has particularly facilitated a more precise definition of the effective impact of Article 2.1. It is Article 6.1, therefore, that makes it possible to understand the more general reasoning of the Court in this process of practical construction of a constitutional status for aliens. That is to say, beyond the specific circumstances that characterise the family protection of aliens, it finally becomes possible to observe some of the particular features that help to understand the specificities of the slow and partial reception of immigration in Germany. A confirmation of the universal character of this right and thus of its extension to aliens, is to be found in the early constitutional case law. Illustrative of this are the decisions of 1 March 1966[135], in which the right of family protection was proclaimed in the sphere of aliens, and of 4 May 1971[136], on the universality of the more specific right to marry. The main feature of this first recognition of protection and what in fact particularises the process of construction of aliens’ family rights, is the fact that this concession of protection strongly focuses on the national partner. Only through the

national partner does the alien enjoy access to the constitutional protection of the Federal Constitutional Court, finally thus being able to oppose to the administrative measure that threatens its status (a deportation order, in most cases). The protection of Article 11, on freedom of movement, which represents a sphere expressly reserved to nationals, is thus, via Article 6.1, extended to aliens through their marriage to a national. Mixed couples – that is, composed of a national and an alien – become a key concept to understanding the development of alien family protection in Germany, as well as of the whole issue of aliens’ constitutional status[137]. This feature is very clear in the case of the 1966 Federal Constitutional Court decision, considered above, in which the reasoning of the Court was motivated by the danger that the deportation order could represent for the national partner. According to the Federal Constitutional Court, the right to constitutional protection, to which the German partner is in any case entitled, obliged the administration to proceed to balancing the different interests affected by the decision[138]. In the reasoning of the courts, the focus of this protection expanded progressively to the alien partner, thus explicitly conferring on the alien constitutional protection on a less indirect basis. The administrative case law of those years is illustrative in this respect: proceeding to an implementation of the constitutional premises, the administrative courts extended expressly this protection to non-mixed couples. The courts thus started to gradually confer protection against deportations, on the basis of Article 6.1, also, and significantly, in cases where there was no German partner[139]. However, the focus on mixed couples, that is, on the interest of the national partner, remained an important factor in the German construction process of family protection[140]. It did evolve to a more independent consideration of the interest of the alien partner, but without abandoning the original basic conception that affirmed the stronger position of the rights of the national partner[141]. It is a system of protection developed on an extremely stratified basis, the fundamental or departure point being the interest of the German national[142]. The precise content of this protection, in the specific sphere of family protection, also finds a correspondence with other features already analysed as distinctive of the German system and, particularly, of the process of progressive reception of immigration. That is – as already seen in the case of the 1966 decision[143] – the balancing test[144]. The administration thus remains obliged to proceed to a balancing between the public and private interests affected by the administrative measure in question. In reality, Article 6.1 does not offer absolute protection against deportation orders, but merely requires the administration to take into account all the different particular circumstances involved in the case[145]. The decisions enacted after the 1990 reform reproduce this principle[146]. Notwithstanding this, the practical relevance of Article 6.1 is not limited to only the conferral of protection against deportation orders[147]. Indeed, with the 1973 government decision to stop all new arrivals (the so-called Anwerbestopp), family reunification (together with asylum) became the only source of new authorised immigration arrivals, thus endowing Article 6.1 with new features and importance[148]. The right to reunify the family of the alien – who had initially been admitted on a strictly temporary and instrumental basis in the German territory – revolutionised the underlying conception of German immigration policy, based fundamentally on the Gastarbeiter scheme.

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It was thus to be decided whether the structure and content of Article 6 allowed for the incorporation of such a new dimension into constitutional family protection, and what type of protection this could represent. In other words, the question that arose was whether this protection was again limited to the obligatory balancing of interests by the administration, or whether it instead represented a transformation of the original premises of Article 6 – and, ultimately, of the whole immigration law – to the extent of conferring on aliens a subjective right of entrance and permanence. III. Questioning the premise of precariousness 1. Grounds for an unlimited constitutional aliens’ status? The final impact of Article 2.1. Summing up the reasoning followed in the sections above, the question posed by the general limits to the administration when dealing with immigration issues is whether these restrictions can go as far as to transform the fundamental and traditional structure of the legal reception of immigration. That is, whether the limits imposed on the administration are so strong as to alter the fundamental premise underlying the configuration of aliens’ legal status: the non-existence of an alien’s right of entrance and permanence. From the perspective of the more theoretical reasoning of the Federal Constitutional Court, the introduction and subsequent definition of Article 2.1 in the sphere of immigration already gave reasonable grounds for considering such a hypothesis. According to the definition the Court gave in its early decisions[149], this provision seemed to entail new and unlimited possibilities. Proof of this is the marked reaction of legal scholars to the ‘‘Arab case’’ decision[150]. However, the precise stand of the Federal Constitutional Court on this specific point was not clear in its reasoning in the text of the ‘‘Arab case’’ decision[151]. That is to say, the Court, on the one hand, confirmed the right of the state to reserve to nationals the freedom of movement, but it affirmed, at the same time, that some constitutional protection for aliens was nevertheless due, on the grounds of the general freedom of action recognised in Article 2.1. It was this explicit reasoning of the Court that seemed to leave open some possibilities for aliens in the field of entrance and permanence. Moreover, besides the specific reference by the Federal Constitutional Court to Article 11 on the freedom of movement, a closer analysis of its reasoning allowed for some further conclusions. In effect, not only did this reasoning seem to indicate the possibility of extending – even if in a limited way – freedom of movement to aliens; it also seemed to allow for a generalisation of that same reasoning. Indeed, having admitted the definition of Article 2.1 as a real Auffanggrundrecht, the other legislative and constitutional provisions which were hitherto understood as being without application to areas initially excluding aliens (that is, in the text of the Constitution) became accessible[152]. The later case law of the Federal Constitutional Court, however, seemed to point in a different direction. That is, the Court seemed to seize its later occasions of intervention in the field of immigration to clarify all the questions left open in the ‘‘Arab case’’. What seemed to represent a break by the Court with the traditional definition of immigration law was reformulated in its later reasoning, so that it lost its initial force. In the Court’s decision of 10 May 1988, on the freedom to choose one’s professional occupation[153], the Court seemed to withdraw from its initial, seemingly revolutionary stand on the precise definition and impact of Article 2.1. As in the ‘‘Arab case’’, the Court, on this occasion, implemented the subsidiary general clause of Article 2.1 in order to extend to aliens some kind of protection in that specific field, despite the

express reserve in favour of nationals that Article 12.1 BL provides[154]. In fact, in the ‘‘Arab case’’, the Court had already recalled the wide limits of this general freedom clause: the constitutional order itself. However, differing on this point from the ‘‘Arab case’’, the Court here developed the significance of these limits: it underlined the need to preserve the constitutional structure, as established in the text of the BL. Thus, according to the Federal Constitutional Court, even if it is possible to recognise constitutional protection to aliens, also in areas in principle reserved to nationals, this cannot lead to a deformation of the constitutional structure established by the BL[155]. From this point of view, the possibilities of aliens general access to all areas of constitutional protection – as the ‘‘Arab case’’ decision seemed to make possible – would thus have been definitely excluded by the reasoning of the Court[156]. 2. The de facto emergence of an unlimited constitutional status for aliens: the ultimate potentiality of fundamental rights. According to the analysis developed above, from the later evolution of the constitutional case law, no room seemed to be left for what was initially regarded as a new revolutionary possibility for the development of a general, and even unlimited, constitutional aliens’ status, on the grounds of Article 2.1’s general clause. However, on a less abstract level of reasoning, that is, when analysing the courts’ specific implementation of the fundamental rights recognised to aliens, alternative ways to achieve these same results still seem possible. Evidence for this might, for instance, be found in the 1978 Federal Constitutional Court fundamental holding, involving a construction worker from India, where the Court developed new ways of protecting aliens by recognising the right to the renewal of the permanence permit on the basis of the constitutional principle of reliance (Vertrauensschutz)[157]. The complainant on that occasion had originally entered the country for occupational training, but the administration had repeatedly renewed his residence permit for the purpose of employment in construction. By the time his permit was finally denied, he had already been lawfully residing in Germany for over ten years. The local agency nevertheless denied renewal, asserting that his further residence would harm the national interest because he was seeking to settle permanently in the Federal Republic. Furthermore, according to the administration, the aim of training workers was to allow them to pursue their occupations in their homeland. The Federal Constitutional Court overturned this decision, arguing that the prior routine renewals had created a constitutionally protected reliance interest in continued residence[158]. Moreover, as the Court made explicit, the change of the government’s official position on immigration policy, could not affect the right to the protection expected on the basis of that reliance[159]. Indeed, as the Court argued, the repeated renewal of the permit by the administration had led the alien to a legitimate expectation of its further renewal. In this sense, the 1978 decision represents the consolidation of a new stage in the construction of an alien’s constitutional status, thus overcoming the traditional distinction admitted between cases involving the renewal of permits and first entry of aliens. It is the behaviour of the administration itself that in this case reinforced the alien’s status, and not only the necessary ties developed by the alien during the years of residence[160]. Although not directly questioning the administrative prerogative, established in Article 7 of the 1965 Act, to deny the renewal of that permit, the Court was recognising here, for the first time, a right to the renewal of the permit.

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Ultimately, a practically automatic right of permanence was inaugurated by the Court with this decision. In effect, although the fundamental premise of the non-existence of the right of entrance remained in this sense unaltered, a fundamental dimension in this whole construction – as represented by the permanence of aliens – was in this way affected fundamentally[161]. Notwithstanding, a further extension of this constitutional reasoning still had to take place, going beyond the domain of permanence. Indeed, the introduction of the new and most determinant problem of family reunification after the 1973 freeze on immigration[162], raised a whole new series of questions. It implied, first of all, the reformulation of the meaning and content of Article 6 BL. It was, in effect, not clear whether the traditional structure of that provision, beyond conferring protection against deportations, could also then allow for the first arrival of relatives into German territory. The discussion surrounding family reunification went in this way as far as to affect, ultimately, the very premise on which the whole understanding of aliens law is based. That is, the fundamental premise of non-existence of a right to entry for aliens. The case law of the courts (both administrative and constitutional) had thus to deal intensively with this question during the restrictive years inaugurated by the Anwerbestopp. Active support was in fact given by the courts to this trend of greater rigour, this being particularly clear in the context of the administrative case law[163]. Indeed, it was not until the Federal Constitutional Court’s decision of 12 May 1987 that new clear limits for the administration were introduced, this representing a determinant final step in the construction of the constitutional status of the alien[164]. That is to say, by questioning, in practice, the non-existence of an alien’s right of entry. In fact, the Federal Constitutional Court’s reasoning did not frame the question in this way. On this occasion, the Court analysed the Verfassungsbeschwerde lodged against the implementation of Baden-Wu¨rttemberg’s three-year requirement of a waiting period, and substantially confirmed the Federal Administrative Court’s reasoning on the same issue[165]. Indeed, the Court did not question the legitimacy of a waiting period as such. In its view, the waiting period did not make the entrance of the alien’s relatives impossible; it merely postponed it. The Federal Constitutional Court declared that the requirement of three years was unconstitutional, because it violated the principle of proportionality[166]. The restrictive immigration policy established by the government was in this way also ultimately legitimised by the Court[167]. It was instead the logical process that led to this conclusion which was in itself extraordinary and which resulted in unexpected consequences. The Federal Constitutional Court drew a distinction between a personal and a material dimension of Article 6. In the personal sphere, the Court proceeded to a definition of the right to family protection, as no longer depending on the transmission of that right by the national partner, as it was mainly its reasoning in its early case law[168]. The Court’s reasoning now seemed to depart from the assumption that the right was transmitted by the alien partner, resident in Germany. What is striking about this reasoning is not, however, this, but the fact that aliens are now considered as entitled to that protection because of their condition as members of families. It is in effect the family community, as such, that becomes the subject of the right to protection, and not individuals considered independently. According to this argumentation, all members of the community are thus entitled to that protection and are thus competent to activate Article 6. In other words, family members who are still outside the territory also become protected in this way by constitutional guarantees[169]. It is, indeed, this inclusion of aliens outside the

territory – that is, before they even have any contact with the national territory – that alters most significantly the traditional scheme of state and territorial sovereignty on which the reception of immigration is based[170]. On the material dimension, the Federal Constitutional Court proceeded to a distinction between the different levels of protection established in Article 6. Although the Court still maintained that no real subjective right is recognised to aliens in the sphere of family reunification, in its view, Article 6 does foresee, besides its provisions on subjective rights, an Institutsgarantie und eine wertentscheidende Grundsatznorm that necessarily contemplates these same aliens. The state is thus obliged, through the system of values established in that provision, to protect these family members[171]. Specifically, this protection consists of the necessary balancing of interests by the administration, which according to the Court in this case, was not respected[172]. The three-year rule thus violated the principle of proportionality, since it constituted a waiting period that was too long and that could thus imperil relations between young partners in a couple[173]. It is this analysis by the Court, stratified and consisting of different levels of protection that allows for an evolution towards an increasingly flexible conception of the family and, consequently, a more adaptable mechanism of protection. In effect, through a combination of the different categories of subjects entitled to protection and of the different degrees of protection contemplated in Article 6, the Court expanded the reach of its impact[174]. Examples of this are to be found in the later case law of the Court, in which it started admitting families that differed from the original and stricter definition of that concept as entitled to protection. In its decision of 18 April of 1989[175], for instance, the Court introduced the criteria of material and effective dependence between the family members, which is what ultimately triggered the conferral of Article 6 protection. The Court proceeded to a categorisation of the possible different types of family communities, establishing which could fall within the scope of the provision (the communities of life, or Lebensgemeinschaft, as opposed to the mere community of encounter or Begegnungsgemeinschaft)[176]. Relations between parents and adopted adult children became in this way protected under the criteria of material dependence[177]. In a later decision of 1997, though, the Federal Administrative Court took this reasoning even further and admitted under the scope of Article 6 cases in which no real life together exists: according to the Court, certain elements of contact, like holidays together or the assumption, by the parent, of the responsibility for the child’s education, may compensate for the lack of a life together in the same house[178]. Following this reasoning, although no explicit subjective right of entrance has been recognised to aliens and, although the courts continue to explicitly deny its existence[179], the courts have effected an extension of protection in the field of entrance. Fundamental rights and constitutional principles are thus revealed, in the practical dimension, as endowed with a power that goes beyond the impact actually foreseen by the courts. The grounds for an extension of protection to aliens should not be looked for in Article 11 BL, which is explicitly reserved to nationals, independently of the impact possibilities of general clauses like Article 2.1[180]. Grounds for this protection should rather be sought for in the set of different fundamental rights and liberties recognised to aliens. Ultimately, the basis for a new construction that might transform, or even replace, the traditional conception underlying the legal reception of immigrants and the

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more specific definition of aliens’ status seem in this way to have been given concrete shape. Since the enactment of the 1990 Aliens Act, the German courts have stopped playing the determinant role that they had done when the 1965 Act was in force and they had to compensate for the law’s lack of clear and precise criteria. In effect, since the 1990 reform, the law includes the principles consolidated in the judicial practice, and the case law of the last decade has thus mainly represented a confirmation of these principles. The intervention of the courts, though, has remained fundamental for the consolidation of these premises as well as for the further development of the different areas of aliens’ rights. Indeed, although the case law of these last years has not been one of major innovations, the courts have sometimes reached solutions that reproduce the innovative and protective reasoning which had characterised the years prior to the reform. Article 6 BL has in fact continued to represent the main basis on which the courts intervene in the sphere of immigration[181]. The case of Mehmet is significant in this respect, since it is a case in which the Federal Administrative Court has put an end to a very restrictive judicial trend. On the grounds of more general constitutional principles, such as the right to family protection, it has introduced a new interpretation of the 1990 Aliens Act[182]. Mehmet was a young Turkish national who, on the basis of a long series of offences committed, had been denied the renewal of his residence permit and, then, had been finally expelled from Germany, despite his young age. Although the Aliens Act does not foresee the possibility of conferring special protection in cases of renewal of permits, but merely in cases of expulsion (Article 48 of the Act)[183], the Court declared invalid the denial of the permit’s renewal and ordered, thus, Mehmet’s return to Germany. In the view of the Court, the importance of the constitutional right to family protection justified the imposition of a solution which altered the text and structure of the Act[184]. In this sense, the judicial practice in cases such as this one continues to reveal the new emerging gaps between law and reality. The case of expulsion of secondgeneration aliens represents in fact a clear example in this respect, which was particularly evident in the case of Germany[185]. Most importantly, though, the reemergence of this type of creative judicial reasoning confirms, in the final analysis, the possibilities of a dynamic and continuous development of the law through the action of the courts.

2. France

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Mitigating the restriction on immigration through the controˆle de le´galite´ A. Precarious rights: the restriction of immigration I. The formulation of the premise of precariousness 1. The confirmation of the general principle: the non-existence of a right to immigrate. Compared to other European countries, France appears as a particular case in the sphere of immigration. As opposed to these other states, the arrival of immigration in France and, moreover, its definition as a country of reception of aliens, started already in the last third of the nineteenth century. Its early industrial and demographic transformation prompted the arrival of immigrants, and a liberal regime towards immigration was thus introduced. In addition, the ties maintained between the Me´tropole and its ex-colonies subsequently consolidated an intensive influx of arrivals to the French territory. However, not all the elements surrounding the reception of aliens in France characterise it as a country of immigration. In reality, its consistent lack of a general policy for the reception and integration of immigrants, as well as, ultimately, the government’s attempts to stop any new arrivals after the economic crisis of the early seventies, rather exclude such a characterisation. It seems possible to draw the same conclusion from an analysis of the reasoning of the French courts. When defining the grounds that should guide the reception of immigrants, they have acted like any of their European counterparts. Indeed, on all those occasions when the French Constitutional Council – the Conseil Constitutionnel – has intervened in the field of immigration, it has simply directly ruled out the possible existence of an aliens’ right to entry and permanent stay. It has declared that it is the exclusive and, furthermore, discretionary prerogative of the state to authorise such a possibility. Particularly relevant from this perspective is the fundamental Immigration and Asylum decision 93-325 of 13 August 1993[186], in which the Conseil began its reasoning by stating[187], even more emphatically than in its previous decisions, that ‘‘no principle or rule of constitutional value assures to aliens rights of a general and absolute character regarding entry and permanence in the territory’’[188]. This fundamental statement in fact condenses, by now formulating it explicitly and in general terms, the reasoning underlying the Conseil’s previous case law[189]. The different restrictive solutions in its earlier decisions can indeed be resumed in a more general premise: the non-existence of a right of aliens, but of the state, to decide which aliens are to be allowed into the country[190]. Indeed, as already asserted in its decision 89-266 of 9 January 1990[191], aliens are placed in a legal situation different from that of nationals. The state is thus legitimised to act in accordance with this specificity: when refusing to allow the entry and permanence of unwanted aliens, the state would actually be confirming this initial premise of inequality as well as ultimately affirming its sovereign right to defend its borders[192]. In the same way, deportation orders also become legitimised on the basis of this premise[193]. Further, since the organisation of entry and permanence of aliens constitutes a right of the state, the Conseil abstains from interfering in a domain that is thus taken to fall

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within the legislator’s discretionary appreciation, and insists, therefore, on its only limited role in the sphere of immigration. In this sense, in the decision 89-269 of 22 January 1990, in which the Conseil proclaimed the fundamental and constitutional character of the rights recognised to resident aliens, the Conseil nevertheless also confirmed the possibility for the legislator to adopt specific rules concerning aliens[194]. The legislator is thus responsible for the reconciliation between the rights to which aliens are in any case entitled and the safeguarding of the general interest and public order. In the decision 89-261 of 28 July 1989, the preservation of public order was in fact qualified by the Conseil as an ‘‘aim of constitutional value’’[195]. Indeed, as made explicit in its decision 93-325, the restrictions on fundamental rights and public liberties, which are necessary to ensure respect for public order irrespective of the nationality of the holder, are however clearly stronger in the case of aliens, public order being the key element in the definition of the conditions of aliens’ entry and permanence in the territory. The concrete use by the Conseil of the general clause on public order would ultimately strike a balance between the different interests at stake. As stated by the Conseil, ‘‘concerning measures related to the permanence of aliens in France, the legislator can make the modalities of implementation of the constitutional aim of public order rely on police rules specific to aliens, as well as on a regime of criminal sanctions, or on a combination of both’’[196]. The Conseil has insisted on this idea throughout its case law, and only at a later stage has progressively begun to play a more active role in the delimitation of the legislator’s competence, thus setting up limits for its intervention[197]. 2. The indirect expression of the general principle: reluctant judicial review. As with the Conseil Constitutionnel, the case law of the Conseil d’E´tat, the highest jurisdictional court in administrative law[198], has always conformed to this basic premise. Nevertheless, its way of expression of this fundamental principle is indeed different from the one observed in the constitutional case law. The Conseil d’E´tat represents the main competent court in the sphere of immigration – that is, in relation to the entry and permanence of aliens. The Conseil Constitutionnel has few theoretical possibilities for intervention, since the only mechanism is the recours (pre´alable) d’inconstitutionnalite´. Through this referral (regulated in Article 61 of the Constitution)[199], the Conseil is seized in order to determine the conformity with the constitution of a bill discussed and voted upon before parliament. Therefore, the Conseil only has the opportunity to intervene directly in the sphere of immigration when reforms of the Ordonnance n 45-2658 of 2 November 1945 on the entry and permanence of aliens (hereinafter the 1945 Ordonnance), the main legal text on immigration, are brought before it[200]. This notwithstanding, since immigration is a highly politicised domain in which the consensus among parties is not easily reached, the Ordonnance has gone through an important number of reforms in the last two decades, according to the oscillations of government party composition. Many of these reforms – also influenced by these political tensions – have been brought before the Conseil, whereby this has been finally able to express its view on this field on different occasions. This circumstance has nevertheless prevented the Conseil Constitutionnel from playing the determinant role that it could otherwise have had. It is indeed the Conseil d’E´tat, which has a consolidated role in the protection of rights and liberties, that fulfils this function, and thus compensates for the Conseil Constitutionnel’s limited possibilities of intervention[201]. Essentially, therefore, the

construction of aliens law in France is done through the administrative jurisdiction. In this sense, the concrete formulation of the fundamental premises on which the status of aliens is constructed should be explored in the case law of the Conseil d’E´tat and, more particularly, in its specific way of reasoning. The competence of the Conseil d’E´tat results from a fundamental principle of the French legal order, which is the principle of division of jurisdictions. According to this, the jurisdictional system consists of two judicial authorities (juge judiciaire and juge administratif ), both of which enjoy the same principle of independence[202]. The administrative judge is the specialised jurisdiction, being competent for the review of decisions enacted in the exercise of public prerogatives, and the juge judiciaire thus simply intervenes in all non-administrative matters. However, despite the existence of this general demarcation of competences and roles, an ongoing discussion has taken place regarding what judge should be considered competent in the immigration sphere. It was indeed only in 1989 that the Conseil Constitutionnel finally closed this debate, with the decision 89-261 of 28 July 1989[203]. The question posed on that occasion before the Conseil Constitutionnel was whether the juge judiciaire could actually be considered competent for questions related to administrative orders of reconduites a` la frontie`re, as the reform of the law had established[204]. The Conseil rejected this option and declared that such a conferral of competence on the juge judiciaire constituted a violation of the principle of division of jurisdictions, which represents one of the ‘‘fundamental principles recognised by the laws of the Republic’’[205]. In this sense, the Conseil constitutionalised the competence of the juge administratif as the natural judge in the field of immigration[206]. Essentially, this declaration of the juge administratif’s competence confirms the characterisation of immigration as a sphere of public prerogatives. In this way, the precise definition of the fundamental premises concerning aliens principally depends on the type of reasoning followed by the Conseil d’E´tat. In contrast, however, with the abstract reasoning of the Conseil Constitutionnel, the approach of the Conseil d’E´tat to immigration is rather concrete, not so much focusing on the definition of a general framework of aliens’ constitutional and legal status, as on the effective control of the action of the administration[207]. Likewise, in opposition to the juge judiciaire, the juge administratif does not dispose of a codified body of norms to assist it in deciding issues brought before it. It is actually the administrative judge alone that proceeds to the organisation – and, even, definition – of the set of principles that should regulate the activity of the administration. In this sense, the administrative jurisdiction in France participates directly in the creation of the law, French administrative law being thus a legal discipline created fundamentally through case law. The approach of the Conseil d’E´tat is thus mainly empirical and technical, its aim being to respond to specific material situations through the body of principles that the judicial practice generates progressively. In this sense, the Conseil d’E´tat has normally avoided general declarations of principle concerning the status of aliens. Nevertheless, from the observation of its technical responses, it is also possible to deduce, as implicit in its case law, the general principle on which aliens’ status is constructed: the nonexistence of an aliens’ right to entry and permanence. Indeed, the Conseil d’E´tat has maintained throughout its case law a very cautious approach regarding the possibility of control of administrative acts in the field of first entries of aliens. The principles set in its very early case law concerning the sphere of immigration are important for understanding the Conseil’s general approach in this

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field. Initially, it refused outright to proceed to any type of control of the administrative prerogatives related to immigration-police issues[208]. Despite having later nuanced this initial categorical refusal, the Conseil d’E´tat nevertheless upheld very large discretionary prerogatives enjoyed by the administration in the field of immigration. In this sense, it refused, for instance, to control the reasons for the prohibition of the entry of certain aliens into French territory[209], or the reasons of public order and national security which could be invoked to refuse to permit the constitution of associations formed by foreigners or to withdraw authorisation for established associations founded by foreigners[210]. In this first stage of its case law, the Conseil only accepted to control whether the grounds on which the administration had justified its decision did fall within the scope of the aliens’ police[211]. The more recent case law of the Conseil d’E´tat is the direct consequence of this reasoning. An example of this is to be found in a decision of 28 February 1986, on the control of the administrative decisions concerning the denial of entry visas. In this decision, the Court refused to exercise a substantive review on the denial of the visa, and declared therefore its legitimacy, by arguing that this denial constituted the expression of the discretionary prerogatives of the consular authorities[212]. The Court proceeded to elaborate a very broad definition of the discretionary powers corresponding to the administration in this field: instead of delimiting the margin of appreciation of the administration (in relation to the more specific question of the concession or denial of visas) with respect to the notion of public order, the Conseil referred on that occasion to the more general concept of general interest[213]. Also illustrative of the maintenance of this line of thought by the Court are decisions such as the judgment of 17 June 1996, in which the Court declared the legality of a visa denial on the grounds of the alleged insufficiency of the alien’s means of subsistence[214]. In fact, on other occasions (for instance, in the decision of 22 April 1992), the Court had directly legitimised the denial of a visa by referring simply to the principe d’opportunite´, which, in the final analysis, condenses the basic reasoning of the Court: the administration is free to concede or deny entry visas according to the interests of the state[215]. II. The confirmation of precariousness in the abstract analysis 1. Le juge administratif, juge de l’immigration: la liberte´ individuelle from a universal perspective. As analysed in the previous section, the understanding of the entrance and permanence of aliens as an area of public prerogatives leads to the recognition of the administrative jurisdiction as the competent one. Nevertheless, this conferral of general competence in all the issues that might be brought up in the implementation of aliens law raises in turn a further issue: the question of how it affects other principles on which the French legal order is structured, such as the competence of the juge judiciaire in questions related to the protection of liberty and security of person[216]. Following this reasoning, this section will try to analyse the implications that this recognition of general competence in the sphere of immigration has had for the abstract understanding of fundamental rights – beyond the more restricted field of immigration. More precisely, it will be argued that the practice concerning immigration has led the Conseil Constitutionnel to rectify its previous case law on individual liberty (liberte´ individuelle), thus proceeding to a more restricted definition of this right, not only for aliens, but in general.

The general competence of the juge judiciaire for the protection of individual liberty had been confirmed by the constitutional case law in the decision of 12 January 1977 (fouille de ve´hicules), which consecrated a very broad definition of this right. Beyond its relevance for the delimitation of areas between both jurisdictions, this decision represented an important step in the construction of an effective system of protection of fundamental rights. Specifically, the use of individual liberty in such a wide sense consolidated a comprehensive framework of judicial intervention and, indeed, of the juge judiciaire, since the protection of the right to individual freedom is defined by Article 66 of the French Constitution as the exclusive competence of this jurisdiction[217]. Thus, according to the criteria set by the Conseil in that decision, individual liberty is not to be understood narrowly, or as referring only to suˆrete´ in the sense of Article 2 of the 1789 De´claration des Droits de l’Homme et du Citoyen, that is, as merely granting protection against arbitrary deprivations of liberty[218]. The Conseil seemed to opt instead for a broader idea of individual liberty, which would thus include other rights such as la liberte´ d’aller et venir[219], l’inviolabilite´ du domicile et des correspondances, or l’intimite´ de la vie prive´e. In this sense, the competence of the juge judiciaire in relation to individual freedom would go far beyond the protection against arbitrary detentions, as foreseen in Article 66. From this perspective, conferring a general competence on the juge administratif in the sphere of immigration, as the Conseil did in its decision 89-261[220], represented a restriction of this jurisprudential general trend towards enlarging the competence of the juge judiciaire. More importantly, though, it led to a restriction of the notion on which the competence of this judge was based – la liberte´ individuelle. On the facts of this case, the principle of competence of the juge judiciaire, as established in Article 66, was not in itself violated. As stated by the Conseil in the said decision, the competence of this judge for the protection of individual liberty remains strictly preserved[221]. It is rather the content of this freedom which was necessarily transformed, since the broader interpretation of individual liberty that was consecrated in 1977 was in this way corrected. The Conseil thus seemed to assume a new restricted version of this right which exclusively contemplates protection against arbitrary detentions. In the final analysis, thus, what the implementation of the general constitutional parameters in the more restricted field of immigration ultimately entailed was the implicit reformulation of the criteria set by the Conseil Constitutionnel in its previous case law concerning the universal right to individual freedom. The 1977 definition of this right proved too wide for implementation in complex fields such as immigration, the Conseil being thus indirectly led to revise its own criteria and to introduce a much more narrow delimitation of this right. 2. The administrative prerogatives in the sphere of immigration: la liberte´ individuelle from the perspective of aliens. Following the reasoning developed above in relation to the process of definition of the universal right to individual freedom, new judicial decisions will be presented here. These are decisions in which the courts set the basic principles concerning administrative measures to keep aliens away from the territory. In this way, it is ultimately argued that inherent in these criteria (specific to immigration) is an ad hoc and restrictive conception of the right to individual freedom in the case of aliens. The result of these decisions is a type of right that legitimises the mechanisms set up by the state to ensure effective respect for its right to determine

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immigration policy and therefore impede the entrance and permanence in the territory of unwanted aliens[222]. For instance, in its Entry and Stay of Foreigners decision 86-216 of 3 September 1986[223], the Conseil Constitutionnel established that no constitutional provision stops the legislator from ‘‘regulating, under the necessary safeguards, the means to allow the administrative authority to order an alien, located on the territory in a situation of irregularity, to leave the territory’’. In this sense, mechanisms such as expulsion, reconduite a` la frontie`re, or administrative detention, which by definition limit personal liberty, are all considered administrative measures compatible with the type of protection recognised to aliens. By not considering that their rights are violated by such measures, the Conseil ultimately comes to define a new and reduced right to personal liberty for the specific sphere of immigration. As the Conseil stated in its decision 89-261 of 28 July 1989, a measure directed to move and keep the person away from the territory (e´loignement) ‘‘it is only legally acceptable if the person concerned is an alien or does not have a nationality’’. The interventions of the Conseil d’E´tat in relation to these measures are also significant in this respect. In essence, beyond the general and abstract reasoning of the Conseil Constitutionnel, the unwillingness of the Conseil d’E´tat to proceed to a thorough control of the administrative measures in relation to this right testifies to the strong limits affecting aliens’ status. These are limits that result from the need to reconcile the right of the state to perform its immigration policy with rights, such as personal liberty that are nevertheless accorded to the alien. The initial approach of the Conseil d’E´tat was simply coherent with its general position in this sphere: the rejection of any kind of control of the administrative prerogatives when relating to immigration police issues. In the specific field of deportation orders, the Court actually evolved from a radical refusal to proceed to any type of review, to gradually admitting some (although extremely limited) control, which consisted of the verification of the accuracy of the facts[224]. Indeed, despite this evolution, the Conseil d’E´tat had consistently excluded the possibility of exercising a full control. According to the discretionary character of the public prerogatives in this field, its control was thus exclusively limited to the verification of the facts on which the deportation order was decided, of the adequacy of the objective pursued by the measure (de´tournement de pouvoir) and, lastly, to the proof of the correct interpretation of the law by the administration (erreur de droit). It was only through the technique of the erreur manifeste d’appre´ciation that the administrative jurisdiction introduced a minimum standard of control in the field of discretionary prerogatives. Through this technique, the administrative judge verifies that no manifest or especially evident error of judgment has been committed by the administration when qualifying the facts on the grounds of which the administrative act is adopted[225]. The decision of 16 March 1984 illustrates the judicial practice of restricted control[226]. In this decision, which concerned an administrative act rejecting the derogation of an expulsion, the Conseil d’E´tat expressly refused to go beyond the standard of the erreur manifeste d’appre´ciation. According to the Court, no manifest error of judgment was committed by the Ministry of the Interior when qualifying the facts upon which the decision had been adopted. The Court explicitly refused, however, to analyse the precise evaluation of the circumstances surrounding the adoption of such a decision. In the view of the Conseil, it was entirely up to the Ministry of the

Interior to determine whether a real threat to public order existed, this being the determinant criterion concerning the derogation of the expulsion[227]. III. The realisation of precariousness in judicial practice 1. The construction of aliens law as a special domain: la police spe´ciale des e´trangers. After having examined the implications of the courts’ reasoning for the definition of the right of aliens to individual freedom, the analysis undertaken here intends to focus directly on the characteristics of the administrative measures that affect this right. Specifically, it will be argued that the aim to which they are subordinated – the safeguarding of public order – is what essentially defines the specificity of the sphere of immigration. The measures implemented in the field of immigration in effect belong to the specific domain of administrative police. They are qualified by the Conseil Constitutionnel as administrative and, specifically, as part of the administrative sphere of the special police[228]. According to this qualification, their aim is a specific one: the preservation of public order. In this sense, these measures do not have a punitive character and are not subject, thus, to the constitutional principles that regulate criminal law. Although the ordinary administrative judicial control subsists, aliens are in this way exempted from the constitutional criminal principles that would otherwise (that is, in the case of nationals) regulate the reaction of the state to the commission of certain acts[229]. For this reason, in the Immigration Law decision 79-109 of 9 January 1980[230], the Conseil rejected the arguments concerning the unconstitutionality of the law by affirming the administrative nature of the expulsion and, thus, by defining it as a police measure[231]. This measure, the Conseil stated, is guided by an aim different from the one that motivates criminal repression and ‘‘no constitutional provision or principle of constitutional value prevents the law from conferring on the administrative authority the power to adopt an order of expulsion on the grounds of facts that would justify a criminal sentence, even when no definitive criminal sentence has been pronounced by the judicial authority’’[232]. Following the same reasoning, the Conseil stated, also in this decision, that Article 8 of the 1789 De´claration des droits de l’homme et du citoyen did not apply in that case since the measure in question (an expulsion) was not a criminal one but a measure of administrative nature, and therefore not subject to these principles. Article 8 establishes the principles that guide the penal regime of determination of crimes and punishments, and, specifically, the principle of non-retroactivity of criminal law[233]. Furthermore, the adaptation of the French legislation in 1992 to the new conditions set by the Schengen Implementation Agreement signified the introduction of a new element in the domain of the special police. The new system proposed represented a mechanism of sanctions (as well as of possible exemptions) to the transport companies through which irregular aliens achieved their entry into the national territory. The ultimate aim of this system was the introduction of an additional and indirect mechanism of control in the fight against clandestine immigration. Nevertheless, against this mechanism it is generally argued that, by de facto obliging carriers to proceed to the verification of the fulfilment by the aliens of the legal and administrative requirements, functions like the police control or the imposition of sanctions are ultimately conferred on private individuals. In the principles consolidated by the case law, police control and the imposition of sanctions are regarded as a non-transferable public competence[234].

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This notwithstanding, in its decision 92-307 of 25 February 1992[235], the Conseil Constitutionnel endorsed the legitimacy of the new system[236]. The Conseil did not address this objection directly. It merely indicated that, in the case where the alien affected is an asylum-seeker, in order to verify that the asylum application is not ‘‘manifestly unfounded’’, the carrier should simply try to examine the situation of the alien without proceeding to further inquiries. In this way, the Conseil reasoned, the provision should not be interpreted as ‘‘conferring on the transport-company a police prerogative that replaces the public powers’’. Likewise, in the view of the Conseil, the wrong foreseen in the law was sufficiently clear and precise as to exclude any possibility of arbitrary implementation by the administration. As analysed in the legal writings, however, it could instead be argued that the potential author of the offence is not capable of foreseeing with certitude whether the acceptance on board of aliens (that do not possess all the required documents) represents a punishable act or not. This would contradict the principle of legal certainty. Also, according to the arguments raised by scholars, by exempting from sanctions the carriers that prove that the necessary documents had been presented at the moment of boarding, the text would be contradicting the principle of the distribution of the obligation of proof, which constitutes an element of the right to defence[237]. 2. Specifically, the controversial nature of deportation orders: the denial of their punitive character. This section intends to complete the analysis of the constitutional case law concerning the legal nature of the immigration measures, by referring to the implementation of these principles in the administrative case law. The interventions of the Conseil d’E´tat regarding expulsions will be outlined here, in order to illustrate the discussion surrounding the definition of aliens law as a domain subordinated to the preservation of public order. In reality, expulsions no longer have the practical relevance they initially had, the reconduites a` la frontie`re now representing the predominant administrative measure in the immigration practice[238]. This notwithstanding, since the main debate surrounding the nature of these measures took place some years ago, the decisions considered below will essentially refer to this period and, therefore, to expulsions. In this sense, despite the diversity of administrative measures in the sphere of immigration, expulsions represent the state’s most common and fundamental mechanism in immigration issues. The severity and importance of their consequences is what explains the debate that has taken place on the definition of their legal nature. This notwithstanding, the case law of the Conseil d’E´tat has always been clear when affirming the administrative nature of deportation orders. More precisely, it has defined these measures as belonging to aliens special police, forthrightly thus denying its punitive character. It is rather in the literature that this allegedly strict administrative character has been contested. A clear example of this is to be found in the decision of 20 January 1988[239], in which the Court summarised its earlier case law by leaving no doubt as to their nature as administrative police measures. Thus, according to the principle set up in that decision, their only aim is the preservation of public order and security, their punitive character being therefore excluded. Indeed, this principle had already been tacitly anticipated in previous decisions such as the one of 21 January 1977[240]. As a result of this lack of punitive character, the Court argued on that occasion that the commitment of criminal offences by an alien could not in itself justify the imposition of an expulsion. Nevertheless, in the reasoning

of the Court, the competent authority was in any case obliged to examine the crimes committed if, according to the specific circumstances, the presence of the alien in the French territory could represent a threat to public order. In this way, the Court defined the criteria for the imposition of deportation measures. The Court, however, did not provide for any further criteria on what should be understood under the clause ‘‘threat to public order’’[241]. It left it up to the administration to determine, in each case and according to the specific circumstances, whether the threat could be considered as real. As with the decision of 13 May of the same year[242], the Conseil refused here to require a more precise definition of the clause’s content, leaving thus a large margin of discretionary appreciation to the administration[243]. The Court refused in both cases to invalidate the expulsions ordered despite having admitted the possibility of a minimum standard of control and, moreover, although having expressly condemned the automatic connection, usually established by the administration, between the existence of a criminal conviction and the imposition of a deportation order[244]. Instead, the Court legitimised the imposition of such orders by simply arguing that it could not be concluded that the administration had committed an erreur manifeste d’appre´ciation in the evaluation of the facts upon which the deportation was ordered[245]. Indeed, the case law of the Conseil d’E´tat following this decision reproduces this reasoning[246]. Ultimately, this wide margin of appreciation makes it difficult in practice to set a clear border between police administrative measures and sanctions. Whereas the former constitute preventive measures directed to avoid dangers to public order, the latter represent a state reaction to an accomplished violation of public order. In practice, however, these theoretical criteria are intertwined. As seen in the decisions referred to above, the Court rejected the automatic connection between expulsions and criminal offences. It nevertheless legitimised, though, the consideration of the offence committed as a sign of the existence of a threat to public order, thus neutralising in practice the distinction drawn between the two. Particularly expressive of this practical convergence of administrative and strictly punitive aims is the decision of 25 July 1980[247]. The Court, in this decision, denied the existence of an erreur manifeste d’appre´ciation by evaluating the nature and seriousness of the infraction committed (a rape), as well as the fact that the alien was soon to be released from prison. According to the Court, the seriousness of the crime committed, in connection with the perspective of release, indicated the existence of a possible threat to public order. It is thus the commitment of the crime that, after having constituted a direct violation of the public order, later became a threat (with the alien’s imminent release from prison), and thus justified expulsion[248]. Thus, the definition of expulsion orders as measures of an administrative or a punitive nature is the object of serious controversy[249]. A whole series of important consequences derives from the qualification of these measures in one way or another. For instance, if they are defined as administrative measures, it then becomes compulsory to implement the norm in force at the moment of the court’s intervention, even if this norm is more severe than the one existing at the moment of commission of the offence. This would indeed not be possible if a punitive character were conferred on expulsions. Likewise, due to their characterisation as police administrative measures, expulsions are also beyond the scope of Article 6 ECHR, on due process, which refers only to civil and criminal procedures[250]. By the same token, ultimately, since these measures do not have a punitive character, the debate over the double jeopardy (or double peine), which in this situation would turn around the double punishment that

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results from the execution of an order of expulsion after the fulfilment of a prison sentence, is from this perspective rejected[251]. B. Emergent rights: the impact of the judicial empirical reasoning I. The introduction of procedural limits to precariousness 1. Restricting the prevalence of public order: limits to the implementation of special police measures. As analysed in the previous section, the legal definition of immigration as part of aliens special police involves the exclusion of the constitutional principles that regulate criminal law and, more generally, the imposition of sanctions. Outside the sphere of aliens special police, however, these constitutional principles apply to aliens in the same way as to nationals. The Conseil Constitutionnel has confirmed this on repeated occasions, in relation, for instance, to Article 8 of the 1789 Declaration on the principle of legal determination of crimes and punishments[252]. Moreover, the Conseil has progressively extended to the sphere of immigration a reasoning that it had already developed in other areas, concerning the imposition of sanctions by the administration. As stated in its decision 92-307, after listing a series of constitutional requirements, the Conseil announced that ‘‘these requirements do not only concern sanctions pronounced by criminal jurisdictions, but they also affect any sanction of a punitive character, even if the legislator has allowed its pronunciation by an authority of a non-jurisdictional nature’’[253]. At the same time, the use of the notion of public order, as the objective towards which these administrative measures are oriented, has evolved in the case law of the Conseil. Although the Conseil has maintained the initial definition of this aim, it has nevertheless introduced a series of more strict requirements which limit the possibilities of preventive intervention by the administration. Ultimately, the Court has restricted the cases in which the reference to the notion of public order can justify the imposition of administrative measures, such as the ones directed to keep unwanted aliens away from the national territory. Taking into account the serious impact that the imposition of such measures has on the person of the alien, the Conseil has defended a more limited use of this notion, allowing only their implementation when this becomes strictly necessary for the preservation of public order. Some scholars argue that this reasoning is to a certain extent already present in the early constitutional case law concerning aliens, albeit very faintly[254]. It is only with the decision 89-261 of 28 July 1989, however, that the Conseil Constitutionnel expressly introduced a new conception regarding the use of the notion of public order. In this decision, the Conseil legitimised the option of the legislator to facilitate the conferral of residence permits on certain categories of aliens. In spite of the critiques raised by the parliamentary opposition, the conferral of permits became in effect no longer dependant on its impact on public order. As the Conseil argued in this decision[255], the legislator does not violate any constitutional principle by making the protection of the family prevail over the preservation of public order, as long as other possibilities, such as expulsion, are preserved for cases of absolute emergency (urgence absolue), which would represent a superior necessity for the state’s or public security[256]. 2. Accepting suspensions in the sphere of immigration: l’erreur manifeste d’appre´ciation. Besides the idea of proportionality implicit in the reasoning of the Conseil Constitutionnel, other limits to the activity of the administration in the sphere of

immigration were set through the reasoning of the courts. Indeed, the wide margin of intervention recognised to the administration was not only due to the unrestricted use of the notion of public order; this merely defined a basis upon which administrative measures like expulsions could be easily adopted. This large margin also derived from the lack of specific control by the administrative judge concerning the imposition of those measures: the proof of the material circumstances that should justify in each case its adoption. In other words, they also resulted from the lack of limits concerning the implementation of that basis. In this sense, the different techniques developed by the case law progressively introduced changes in this situation. Areas traditionally preserved from any possibility of judicial intrusion were finally brought under the reach of judicial review. The technique of the erreur manifeste d’appre´ciation, concerning the legal qualification of the facts, represents one of these mechanisms created through the reasoning of the courts. However, its extension to the field of aliens special police proved more complex than in the other areas concerning administrative discretionary prerogatives. It was not until the decision of the Conseil d’E´tat of 2 November 1973, Librairie Franc¸ois Maspero[257], that the culmination of this general trend already consolidated in other areas was also achieved in the sphere of aliens law. The reference in this decision to immigration issues was however only very indirect[258]. Among the judgments directly relating to aliens law and, specifically, to the expulsion of aliens, it is necessary to refer to the decision of 23 July 1974, Ferrandiz Gil Ortega[259], on the suspension of special police measures. On that occasion, the Court accepted for the first time the possibility of suspension of an expulsion ordered by the Ministry of the Interior. The decision in fact represented a rupture with the jurisprudential criteria then prevailing, which had traditionally excluded the possibility of ordering a stay in the case of expulsion of aliens. Furthermore, it represented a deviation from the norms in force, given that the law reform of 1953 had established that no suspension could be ordered by the courts in relation to decisions affecting the public order, and had moreover conferred the competence on this question on the lower administrative courts. Thus, the Conseil d’E´tat was not competent, in principle, to intervene. Nevertheless, by affirming the prevalence of the right of the person to demand before the courts the suspension of administrative measures, the Court consecrated such a mechanism of interim relief – also, thus, in the sphere of immigration – and, ultimately, took a new stand concerning expulsions. In this way, the analysis of the criteria qualifying the situation as threat to public order resulted essential, the Court referring, in order to do this, to the erreur manifeste d’appre´ciation[260]. The following decisions of the Court are in fact further specifications of these criteria. Thus, reasons traditionally advanced by the administration in order to justify expulsions were no longer admitted by the Conseil. For instance, the irregular entry of the alien in the territory[261], the possession of false documents[262], or the violation of the obligation of political neutrality (which was actually later abolished)[263], were declared by the Conseil d’E´tat, contrary to the reasoning held by the administration, as not enough to justify by themselves the expulsion of aliens. In effect, the reasoning followed by the Court concerning the stay of administrative measures offered the theoretical framework for the further development of the parameters of judicial review. The Court progressively expanded its intervention in the field of aliens special police. For instance, in its decision of 18 July 1976, Moussa Konate´[264], the Court specified further when a suspension could be

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ordered[265]. Only if the administrative measure is still causing an impact on the person who is the object of the order can the suspension be then justified. In the case of expulsions, the effects of the administrative act go beyond the material execution itself, since the measure implies the prohibition of returning to the country during a certain period of time[266]. Following the structure set out on this occasion by the Commissaire du Gouvernement[267], besides the existence of a prejudice for the alien who was the object of the measure, the court also needs to analyse the nature of the interests at stake (both public and private), as well as the seriousness of the reasons argued in the appeal – that is, the consistency of the arguments sustaining the illegality of the measure. Consequently with this scheme, once the Conseil d’E´tat had admitted the existence (in that specific case of expulsion) of an actual prejudice to the alien, it then implemented the technique of the erreur manifeste d’appre´ciation. However, in this case it did not finally consider that the administration had actually committed that type of illegality. The Court ordered the suspension through the external control of legality of the act of expulsion, given that the administration had not respected the obligation of prior notification of the order of expulsion, which, in the administrative court system constitutes a substantive procedural rule[268]. Likewise, beyond this delimitation of the cases that could represent a threat to public order and therefore effectively justify an expulsion, the Court rejected stereotyped argumentation by the administration[269]. Ultimately, the Conseil d’E´tat thus affirmed the full validity, also for the sphere of immigration, of the principle established in the Act of 11 July 1979: the obligation of justifying with reasons, or motivation, administrative decisions restricting rights such as personal freedom or, more generally, measures of special police. The decisions of 24 July 1981, Belasri – concerning the possibility of suspension of an expulsion order[270], and of 13 January 1988, Abina – in relation to an expulsion imposed through an emergency procedure[271], both show this jurisprudential trend towards a more strict demand of a precise and explicit justification of the reasons that motivate these measures[272]. Finally, these techniques of control originally developed in the material sphere of suspension of expulsions were also progressively extended to other fields such as the one concerning the reconduite a` la frontie`re. Although French administrative law is characterised by the executive character of the administrative measures, the Court decided, as it had previously concerning expulsions, that the administrative judge enjoys the possibility of ordering the suspension of the act when the circumstances of the case justify it. The decisions of 29 June 1990, Engin and Hablani, incorporate this kind of measure into the administrative judicial review[273]. The law reform of 10 January 1990 had finally conferred a suspensive effect on the referral against the administrative orders of reconduite a` la frontie`re. The possibility of a stay had, however, been excluded from the appeal against the refusal[274]. Following the conclusions presented by the government commissioner (Commissaire du Gouvernement)[275], who argued that the extension of the possibility of stay to appeal did not contradict the spirit of the reform, the Conseil d’E´tat conferred the decision of suspension on the administrative judge in cases of appeal, according to the circumstances in each case[276]. II. The consolidation of substantive limits to precariousness 1. Overcoming the principle of controˆle restreint: the protection of family life. The analysis offered in the previous section has set out to show how through the

development of different judicial criteria – constitutional and administrative – important procedural limits were progressively introduced in the sphere of the discretionary prerogatives that regulate aliens law. The general clause of public order was, in itself, no longer sufficient to legitimise administrative measures directed to deter aliens or expel them from the territory. The introduction of these mechanisms signified a fundamental transformation in the understanding of the legal reception of immigration, until then practically entirely subordinated to the discretionary evaluation by the administration, and exempted from any relevant form of judicial review. The judicial reformulation of the notion of controˆle restreint meant rejecting the absolute absence of control concerning the qualification of the facts performed by the administration[277]. The following analysis endeavours to demonstrate how precisely, through the practical implementation of these judicial techniques of review, the courts were finally led to exercise an effectively wider control. In certain situations, the courts accepted to go beyond the strict limits set by the logic of restricted control and thus proceeded to a thorough review (controˆle entier) of the legal qualification of the facts on which administrative acts were adopted. Ultimately, the implementation of this new standard of control represents the rupture with the logic of administrative privileges that had fundamentally characterised aliens special police. Different interventions of the Conseil d’E´tat can indeed be interpreted as evidence of this emerging trend towards implementing a more thorough form of control. However, instead of directly questioning the principle of limited control, the Conseil opted most of the times for simply delimiting strictly this area. For instance, administrative decisions determining the country of destiny for expelled aliens were thus qualified by the Court as representing a separate issue from the decision of expulsion itself and, therefore, as being outside the sphere of restricted control that characterised aliens special police measures[278]. Another sign of this drift in the administrative case law were decisions concerning expulsions ordered under emergency procedures. The use of such procedures had become a practice of the administration as a way to neutralise the protection against expulsions enjoyed by certain categories of aliens. According to Article 26 of the Ordonnance[279], these categories of aliens could only be expelled in cases of absolute emergency and of imperative necessity for the state’s security. In order to put a limit to this practice, the Conseil d’E´tat began to undertake a thorough control in these cases[280]. Indeed, the introduction of a first or restricted review had been initially prompted by criticisms of the extreme consequences for aliens of administrative measures such as expulsion or reconduite a` la frontie`re. The courts thus started requiring from the administration the consideration of all the circumstances and interests involved in the decision, in order to avoid causing excessive personal harm. It is this same concern which ultimately explains the expansion of these first solutions advanced by the courts: the protection of aliens already resident – legally or illegally – in the territory, and having thus developed ties in the host country. The quick development of the right to family protection proves the reality and strength of this reasoning. It is essentially through this specific sphere that the consolidation of judicial mechanisms in the sphere of aliens special police took place, in a way accompanying the changes also affecting the immigration phenomenon. Indeed, immigration had by then acquired new features, with family relations playing an increasingly important role. What once had been regarded as the temporary arrival of aliens, was now very often a situation of long-settled immigrant families with

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hardly any ties to their country of origin. At the same time, personal and family circumstances were in any case to become aliens’ main (and, often, only) argument against administrative orders of expulsion: the immigration stop imposed in the early seventies in most Western countries left no other margin. In this sense, the early consecration of the right to lead a normal family life (droit a` une vie familiale normale) by the case law of the Conseil d’E´tat[281], as well as the importance and impact conferred on the right to private and family life by the case law of the ECtHR[282], offered a solid basis for its further development by the administrative courts. Two decisions of the Conseil d’E´tat are of critical importance in this early consecration of family life for aliens: Olmos Quintero and Imambaccus, both of 29 June 1990[283]. These decisions represented a further step in the incorporation of the mechanism of reconduite a` la frontie`re into the judicial administrative review process and, thus, into the technique of the erreur manifeste d’appre´ciation[284]. More specifically, though, the innovative aspect of this decision was the consideration, for the first time when implementing the control of the legal qualification of the facts, of the family and personal situation of the alien[285]. Following the reasoning of the Commissaire du Gouvernement[286], the consideration of the family circumstances as a control parameter of legality was finally possible because of the characteristics of the reconduite a` la frontie`re, as opposed to those of the expulsion, on which the Conseil d’E´tat had hitherto focused its reasoning. Indeed, the traditional refusal of the Conseil d’E´tat to consider such circumstances had always been justified on the grounds of the nature of the measure of expulsion, which requires the existence of a real threat to public order. The imposition of the expulsion signifies, then, the need to preserve public order, whereby any other element of consideration – including the protection of family life – is thus rejected. The reconduite a` la frontie`re offered instead a new framework in which the preservation of public order is not necessarily at stake. In this way, the consideration of the family and personal circumstances became possible. As the Commissaire argued in his conclusions, it even became compulsory in order to comply with the requirements of Article 8 ECHR as interpreted by the Strasbourg Court[287]. The following case law of the Conseil d’E´tat took this reasoning further. Indeed, the introduction of the new dimension of family life and, through it, in turn, of the supranational dimension of the Strasbourg case law on Article 8, opened entirely new possibilities in the traditional scheme of judicial intervention in the field of aliens law. Specifically, two decisions of 19 April 1991 illustrate the potentiality of this new structure[288]. In contrast with Olmos Quintero and Imambaccus, the possibility of protection of the right to family life under Article 8 ECHR was on this occasion put directly before the Court, in the cases of Babas and Belgacem. The direct implementation of Article 8 had in effect been traditionally rejected in France. On the one hand, the technique of the ‘‘screen-law’’ (loi-e´cran) argued that the existence of a norm in French law already regulating measures to send aliens away from the territory made the direct implementation of an international norm on the same question impossible[289]. Nevertheless, after the revolution initiated on 20 October 1989 by the fundamental Nicolo decision[290], which accepted the direct implementation of international norms in French law, this argument could no longer be sustained[291]. However, as seen above, the direct reference to Article 8 was also usually rejected by simply refusing to admit the consideration of family circumstances when implementing this kind of measure. Nevertheless, this argument was also finally

overcome by the weight of the Strasbourg case law on that issue, which opposed the French criteria[292]. Thus, the decisions of 19 April 1991 represent a turning point in the Conseil’s case law, though it should be noted that the Court had already recognised, in a previous judgement of 18 January 1991, Beldjoudi, the possibility of direct implementation of Article 8[293]. However, it was only with Babas and Belgacem that the Court proceeded to a general and systematic definition of a framework for the effective protection of aliens’ right to family life. Indeed, in contrast with Beldjoudi, the underlying question there was actually the compatibility between the different national and international responses to this issue. Ultimately, it was the question of what specific protection should result from the combination of the protection conferred by French law to aliens’ family life – through the 1945 Ordonnance – with Article 8 ECHR. Whereas, according to Article 25 of the Ordonnance, a wider range of categories of aliens became protected against expulsions, the degree of protection conferred by the Ordonnance was however weaker than that recognised by Article 8. The solutions given to each of the cases were different. The Court reasoned according to the diversity – and different degree of impact – of the administrative measures involved, as well as according to the different circumstances existing in each case. In Babas, the measure imposed was a decision of reconduite a` la frontie`re. The Conseil, following the conclusions presented by the Commissaire du Gouvernement[294], rejected the appeal against the administrative measure. Neither Article 22 of the Ordonnance (from the perspective of the technique of the erreur manifeste d’appre´ciation), nor Article 8 (according to the proportionality test developed by the ECtHR)[295], could lead the Court to conclude that an excessive impact had been inflicted on the personal situation of the alien. Instead, in the case of Belgacem, the Court – proceeding to a thorough control of the measure which consisted of the implementation of the proportionality test[296] – accepted that the consequences deriving from the expulsion were excessive[297]. 2. Introducing the juge judiciaire: the absolute protection of liberte´ individuelle. According to the previous analysis, the protection of aliens present in the territory was consolidated progressively, along with the development of judicial control over the special police administrative measures. Aliens were thus conferred increasing mechanisms of defence in the face of measures to physically remove them from the territory. Given the importance of the right to personal liberty in the sphere of aliens special police, the following analysis intends to go beyond the strict control of legality performed by the administrative courts and focus on the construction by the Conseil Constitutionnel of this right. Although the Conseil Constitutionnel departs in its reasoning from a restricted definition of the right of aliens to personal freedom, which thus admits the imposition of measures such as expulsion or detention[298], the Conseil has also affirmed the existence of fundamental limits to the administrative prerogatives. Specifically, the Conseil has introduced an additional control in the stage of execution of those measures. In this way, the protection granted to the right of aliens to personal freedom has come, essentially, to represent a protection against arbitrary detentions. Instead of directly opposing the physical removal of aliens from the territory – as is actually the case in the judicial control of legality, it simply renders its effective execution more difficult. The Conseil seems to include aliens by proceeding to a definition of a right to personal freedom as a territorial right but nevertheless limited in its content with

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respect to aliens. In the construction of this right, the Conseil delimits, on the one hand, the constitutional grounds relevant for the recognition of this right and, on the other, the judicial authority competent for its protection. These two questions are however inextricably linked. The following constitutional decisions will be thus presented according to this double characteristic. The administrative judge is in principle the competent jurisdiction, since this judge is responsible for the protection of individual liberties in the sphere of public powers. Administrative measures such as expulsion, reconduite a` la frontie`re, or even – and to a lesser extent – detention, as the measure necessary to assure the effective execution of the latter, all come within the competence of this judge. However, as understood by the Conseil, the risk of arbitrary detention makes the intervention of the judicial authority (juge judiciaire) possible, given that this judge is the natural protector of individual liberty (liberte´ individuelle), as established in Article 66 of the Constitution[299]. This provision was introduced by the Conseil very early on, in its decision 79-109 of 9 January 1980, as a fundamental ground for aliens’ right to personal liberty[300]. Nevertheless, according also to the reasoning of the Conseil, this risk only exists with the prolongation of the detention. Consequently, the competence of the juge judiciaire is limited to this stage[301]. Notwithstanding these restricted possibilities of intervention, the introduction of the juge judiciaire in this normative framework is what finally consolidates a right of aliens to individual liberty. Article 66 represents an irreducible last resort guarantee for which no differences between nationals and aliens are allowed (‘‘Nul ne peut eˆtre arbitrairement de´tenu.’’). In this sense, it represents both the prohibition of arbitrary detention and the incorporation of a universal dimension in the definition of a protection for aliens. Therefore, from the conceptual perspective of the construction of this right, the role of the juge judiciaire in the system of guarantees is ultimately important symbolically, as the way to affirm the unrestricted character of aliens’ right to individual freedom: Article 66 proclaims the universal nature of this right. Indeed, as already analysed in the case of family protection, the extension of fundamental rights introduces aliens into a sphere of reinforced guarantees in the face of administrative prerogatives. To a certain extent, though, the idea of equality implied in Article 66 represents a step further in the emergence of a constitutional status for aliens. In contrast to the right to family life, it confers a protection which is absolute and which thus does not admit any discrimination between aliens and nationals. However, the practical relevance of this theoretical construction is very small, since the sphere of intervention of the juge judiciaire is extremely limited in practice. This notwithstanding, the following constitutional case law shows how the Conseil has progressively extended the possibilities of intervention of this judicial authority. In the final analysis, it indicates an important evolution in the understanding of aliens special police measures and, in turn, of the right of aliens to liberty and security of person. Whereas these measures were initially conceived by the Conseil as not interfering with aliens’ right to individual liberty, the increasing possibilities of intervention conferred on the juge judiciaire prove the transformation of the initial reasoning. For instance, in its decision 92-307 of 25 February 1992[302], the Conseil affirmed the necessary intervention of this jurisdiction, other than in administrative detentions, also in the international or transit zones (zones d’attente ou de transit) which were introduced at the time[303]. Although the Conseil followed the government’s reasoning by arguing that this new procedure did not have such a strong

impact on the right to individual liberty as the administrative detention[304], it nevertheless considered that this right was finally affected by this new form of detention[305]. The intervention of the juge judiciaire was therefore declared necessary. Moreover, in addition to the principle of intervention of this judge, the Conseil has defined the duration of the detention as the other main criterion to evaluate the conformity of this type of measure. Thus, in its decision 79-109 of 9 January 1980, the Conseil established that ‘‘personal liberty can only be considered safeguarded if the judge intervenes in the shortest possible time’’. Likewise, in its decision 86-216 of 3 September 1986, the Conseil underlined that ‘‘even under the control of the judge, the detention (re´tention) cannot be extended, unless it is a case of absolute emergency and a particular threat to public order, without violating the right to personal freedom’’. Accordingly, it declared a provision that automatically extended the detention contrary to the Constitution[306]. The decision 93-325, of 13 August 1993, represents the consolidation of this general tendency by also declaring unconstitutional the automatic extension of the detention. More importantly, this decision confirms the rupture with the narrow interpretation of the notion of personal freedom, going back to the wide understanding implicit in the decision of 12 January 1977[307]. Proceeding to a broad interpretation of Article 66, the Conseil declared in 1993 that, beyond the protection against arbitrary deprivations of liberty, other rights were included in the idea of protection of personal freedom, such as la liberte´ d’aller et venir, data protection, and the right to marry[308]. III. Questioning the premise of precariousness 1. Reinforcing the substantive guarantees: the generation of positive obligations for the administration. The following analysis of case law tries to deduce an ulterior stage in the construction of aliens’ status. It intends to show how the further development of the new and expansive basis of judicial intervention has actually gone beyond the restriction of the state mechanisms to send aliens away from the territory. A great leap forward is implied in the later reasoning of the courts: in the progressive construction of a status for aliens, they have sometimes gone so far as to challenge the core of the basic premise on which immigration law is predicated, in a way that questions its legitimacy and the whole construction deriving from it. Effectively, the courts have in certain cases recognised the right of the alien to enter the territory, thus neutralising the right of the state to regulate immigration flows. In this sense, the courts seem to have overcome the reasoning that had been employed to justify their action, namely, the protection of situations or personal relations created by the aliens in the host country. Indeed, aliens still outside the territory have also been held to come within the realm of judicial protection. Although the Conseil d’E´tat consecrated very early on the possibility of first entry through the recognition of the right to family reunification[309], a more general reasoning concerning entry was only achieved through the development of the judicial technique of the control of legality. A significant step in this judicial construction can for instance be observed in the reinforcement of procedural guarantees concerning the administrative conferral of permits on aliens. The type of control of legality (controˆle plein) already accepted in cases of expulsions or reconduite a` la frontie`re was in effect also implemented in procedures regarding entry and permanence permits[310]. Essentially, though, this construction was achieved through substantive rights. As with the first stage of expansion of the judicial mechanisms of control of the

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administration, the sphere of family protection has been selected here in order to analyse the reasoning followed by the courts. The initial conferral of protection in the sphere of family life had been indicative of a more general concern, regarding the severe impact of administrative measures such as expulsion and reconduite a` la frontie`re for aliens already present in the territory, who had thus developed and consolidated ties in the host country. Indeed, in the more polemic sphere of entry and permanence, family protection also occupied an essential consideration in the case law of the courts. An explanation for this development is however less immediate in this case. The aliens thus protected are still outside the territory. It is therefore not possible to argue that the administrative decisions produce a rupture or a modification of an already existing situation. Rather, the protection conferred in the sphere of entry and permanence seems thus ultimately due to the increasing importance of family protection and to the expanding effects of the reasoning of administrative control articulated by the courts. In effect, the resulting protection of family life does not only refer to situations that fall strictly under the state’s territorial sovereignty but goes beyond the scope of family reunification. In the final analysis, the protection conferred on families is an expression of the state’s responsibility for the general situation of the person under its sovereignty, even if this implies contemplating personal relationships outside its territorial limits. The material evolution of this reasoning can actually be followed through the more specific perspective of Article 8 ECHR. The reception and expansive implementation of this provision in France is expressive of the transformation of the general understanding of family protection as well as, ultimately, of aliens’ status. As seen above, the introduction in the French legal order of this provision was achieved with Babas and Belgacem[311]. However, it is not until the decisions of the Conseil d’E´tat, of 9 April 1992, Aykan, Marzini and Minin[312], that the implementation of this Article is extended to areas other than expulsion or reconduite a` la frontie`re. Essentially, this signified the recognition of the means of entry into the territory. These three decisions of the same date are in effect illustrative of this idea[313]. It is however with the Aykan decision – on the conferral of an entry visa – that the Court introduced the most drastic innovation in the general structure of aliens law. To a certain extent, it culminated in the process initiated with Babas and Belgacem. In this decision, the Court started its reasoning by insisting on the wide margin of evaluation that corresponds to the administration in this specific sphere. The Court affirmed the particular nature of decisions on entry visas, thus rejecting their characterisation as administrative acts, and denied therefore the obligation of motivation that would otherwise be required by administrative law[314]. Notwithstanding this, the Court still proceeded to the implementation of the proportionality test foreseen in Article 8 ECHR, for the first time in a case concerning the conferral of entry visas[315]. Ultimately, since this domain is a direct expression of the principle of state sovereignty, it introduced a completely different set of problems from the ones posed in the case of expulsions or reconduite a` la frontie`re, this being the extraordinary aspect of this decision[316]. Nevertheless, the type of judicial intervention developed through the technique of control of legality could not by itself lead to this further stage in the construction of aliens’ status. The reasoning inherent in this type of control dictated strict parameters of intervention based exclusively on the overruling of illegal administrative acts, whereby the control over the subsequent conduct of the administration remained beyond the courts’ reach. There is a further type of variable that explains this fundamental later stage in the protection granted to aliens by the courts: the

introduction in French administrative law of new mechanisms such as astreinte, injonction or re´fe´re´-liberte´, which offered finally the means to oblige the administration to effectively execute and, therefore respect, the courts’ decisions[317]. Thus, the implementation of such mechanisms allowed for the direct imposition by the administrative courts of positive obligations on the administration. Different rulings later given by the Conseil d’E´tat are significant from this perspective. For instance, in its decision of 4 November 1994, Al Joujo, Chiker and El Aloui[318], the Court, following the conclusions presented by the Commissaire du Gouvernement[319], analysed the specific obligations that are imposed on the administration when it annuls expulsion orders. The Court proceeded to make a distinction according to the different causes of illegality detected. In any case, the immediate effect of the annulment ordered by the Court was the retrospective extinction of the measure declared illegal, the right suppressed by it being therefore resuscitated. However, according to the Court’s reasoning, this does not directly confer an unconditional right of re-entry. The specific circumstances need to be evaluated in each case[320]. More precisely, in a response to a consultation referred to the Conseil d’E´tat (Avis of 30 November 1998, Berrad)[321], the Court introduced these new mechanisms in the implementation of Article 8 ECHR beyond cases of deportation. The Court analysed the practical consequences deriving from the mechanism that had been then introduced in French administrative law: the injonction. The administrative order at stake, which concerned a refusal to grant a residence permit, had been declared contrary to Article 8. Thus, the question put before the Court was whether aliens falling under the scope of Article 8 – the right to private and family life – could be considered holders of a right to permanence. According to the Conseil, aliens do have a right of permanence in those cases. However, the precise correlative obligations for the administration need to be defined according to both the ECHR and the Ordonnance. The particularly interesting aspect of this case is the protection that results from the combination of the ECHR and the 1945 Ordonnance. It is a final protection that goes beyond the one foreseen by the ECHR alone, by explicitly connecting the right to family life with the right to permanence[322]. Finally, in the recent delimitation by the Conseil d’E´tat of the cases in which the new emergency procedure (re´fe´re´-liberte´) can be implemented, this mechanism emerges as fundamental in the field of aliens special police measures[323]. In order for it to be possible for the administrative judge to grant measures of emergency vis-a`-vis the administration, a serious restriction on a fundamental liberty must have occurred. Moreover, according to the later developments of the case law, it often needs to be a disproportionate interference with such a liberty. As the Conseil d’E´tat declared in a decision of 30 October 2001[324], the right to ‘‘lead a normal family life’’, which in the case had been restricted by an order of expulsion, qualifies as liberte´ fondamentale in the sense of the re´fe´re´-liberte´[325]. 2. Formulating general principles and correlative state obligations: le droit a` une vie familiale normale. The analysis of the case law in the previous sections has tried to show the limits progressively imposed by the courts on the administration. However, besides expressing the precise correlative degree of protection finally conferred on aliens, this analysis also reveals the fundamental features of the administrative courts’ general reasoning. Essentially, it is a reasoning characterised by its empirical and technical dimensions.

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Nevertheless, beyond the specific implementation of technical criteria, the administrative jurisdiction has also proclaimed general substantive principles as a direct response to the material situations concerning aliens. In this sense, they are neither abstract rules nor technical principles without an explicit connection to the substantive reality in which they are implemented. Rather, they are formulated with express reference to the specific material problem that they consider, intending thus to consecrate a precise solution by conferring on it general validity. Most significantly, they are principles that are also determinant in the more abstract and systematic reasoning of the constitutional jurisdiction. The reasoning – and, ultimately, the impact – implied in these general formulas is different from the one inherent in the technical and specialised type of responses. This is the distinctive aspect of the intervention of the French administrative courts when proclaiming these general principles. Beyond the setting up of specific limits to the administrative discretionary prerogatives – as in the case of the control of legality of the administrative decisions, these general principles constituted the direct and explicit recognition of substantive rights to aliens. As seen in the previous section, the conferral of protection in the form of procedural guarantees represented defining limits in the sphere of aliens special police, to the extent of sometimes effectively imposing on the administration the conferral of entry and permanence permits. Instead, the proclamation of these rights through general principles is not the practical result of restricting administrative prerogatives but, rather, the direct affirmation of the existence of these rights as independent of these prerogatives. Ultimately, the whole action of the administration is as a result affected. Following the reasoning of the previous sections, which revealed family protection as a key element in the construction of aliens’ status, this last section also structures its analysis around this question. Its role is in effect also determinant in the proclamation by the courts of general principles, both in the administrative and in the constitutional case law. The decision of the Conseil d’E´tat of 8 December 1978 represents the first step in this construction[326]. By referring to the ‘‘principes ge´ne´raux du droit’’ and to the Preamble of the 1946 Constitution[327], the Conseil consecrated on that occasion the right to lead a normal family life (Droit a` une vie familiale normale), while at the same time declaring the right to family reunification as one of its fundamental elements. In this way, the Court rejected the implementation of the government’s decision to stop any new entrances of family members into the national territory. The question put then before the Court concerned the legitimacy of the government’s decision to subordinate the entry of family members to their abstaining from applying for work. Although the Court confirmed the non-existence of a right to work – affirming however the right to apply for it – it nevertheless proclaimed the right of all persons resident in the national territory to be joined by their families[328]. As the Conseil reasoned in this decision, it corresponds to the government to reconcile this right with the preservation of public order, as well as with the social protection of alien workers. Despite refusing to define any further the precise limits that this implies (for both the aliens and the administration), the Court declared that the government had exceeded its competence by requiring family members to abstain from working in order to authorise their entry into the territory. From this perspective, the right to family reunification represents a right of entry that suppresses the state’s otherwise seemingly absolute right to regulate, according only to its own interests, the flow of immigration allowed. The importance conferred on

family protection led to the elevation of the right to family reunification as one fundamental component. In this way, the protection enjoyed by aliens already admitted into the territory is transmitted to the family members who are still in the country of origin, the administration being therefore obliged to confer in those cases an authorisation of entry. Although the possibility of family reunification had already been recognised by French law, it was nevertheless traditionally subordinated to the general imperative of public order. In this way, the administration had in any case retained a great margin of discretionary power. The Conseil Constitutionnel’s early case law had confirmed this framework, thus refusing to adopt the principles set by the Conseil d’E´tat in the sphere of family protection[329]. It is only with the constitutional decision 93-325 that the right to lead a normal family life acquired the status of fundamental right. The constitutional basis for this reasoning was found in paragraph 10 of the 1946 Preamble, which thus confirmed the administrative case law in this sphere and conferred constitutional rank on this right[330]. Like the Conseil d’E´tat, the Conseil Constitutionnel declared that the right to lead a normal family life involves the possibility to be joined by the family members in the country of residence[331]. From the point of view of the emergence of a constitutional status – and, specifically, as a way of directly questioning the right of the state to deny the entry and permanence of unwanted aliens, the Conseil Constitutionnel’s decision 97-389, of 22 April 1997, is particularly relevant[332]. Apart from restating the fundamental character of the right to lead a normal family life, the Conseil gave, for the first time, priority to this right, in combination with the right to private life, over public order. The Court stated that the ‘‘simple threat to public order’’ cannot jeopardise the right of permanence acquired by a person who has been lawfully residing in the territory for over ten years, and as a result having necessarily developed strong ties within French society[333]. The extraordinary aspect of this decision is not only the priority given to this right, but, more fundamentally, the recognition for the first time, albeit indirectly, of a right of permanence. That is, the recognition of a quasi-unconditional right to the renewal of the residence permit, as long as the alien’s presence does not create a ‘‘serious threat to public order’’[334]. The very principle of precariousness as defined above seems thus to be essentially limited.

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3. Spain Acknowledging the phenomenon of immigration through the new constitutional framework A. Precarious rights: the unexpected arrival of immigration I. The formulation of the premise of precariousness 1. The confirmation of the general principle: the non-existence of a right to immigrate. In contrast to most Western countries, in Spain the reception of immigration has begun only very recently, in a way accompanying the economic and political changes that the end of the Franco era signified. Traditionally, Spain was characterised as a country of emigration. In this sense, its legal and political structures were mainly focused on this other set of problems[335], remaining thus impervious to the transformation process that other societies had undergone through immigration. Despite this, Spain quickly subscribed to the main premise generalised in those countries: the denial of the existence of a right of aliens to entry and permanence. The assumption of this basic premise is indeed to be found in the reasoning of the Spanish courts, to a certain extent symbolising the full incorporation of Spain into Western thinking on the treatment of aliens. Examples of this are to be observed in the early case law of the Spanish Supreme Court, the Tribunal Supremo. For instance, in its decision of 25 June 1980[336], concerning the denial of a residence and work permit, and an additional order of expulsion, the Court affirmed that the state is free to concede permits to aliens or decline to do so. This decision is precisely one of the first occasions on which the Court implemented constitutional principles in the field of immigration. This notwithstanding, as the Spanish Supreme Court argued in that case, the obtaining of the entry permit is indeed the only key of access to any possible claim by aliens vis-a`-vis the state[337]. However, notwithstanding decisions such as this, the effective assumption by the Spanish courts of this premise – that is, the denial of the right to entry and permanence – is most of the times done in an implicit way. In effect, the judicial adhesion to this idea seems often to be merely tacit in the reasoning of the decision, instead of being directly expressed as the basis for any consideration regarding immigration. There are few explicit court pronunciations that directly deny the existence of this right of aliens. Although the courts refuse it in practice, they seem to opt, rather, for an implied or indirect statement of this premise. An explanation for this could perhaps be found in the fact that Spain has only recently known the phenomenon of immigration which remains, as a result, of relative minor significance in Spanish society. In this sense, and with respect to other national models, the Spanish courts have had fewer occasions to express their view on this subject. Moreover, it could further be argued that pronunciations of this kind were in any event less necessary and determinant by the time immigration became a relevant issue in Spain. The general normative framework for the reception of immigrants had already been clearly and expressly built on the idea of state sovereignty, in international as well as in comparative law. The Spanish courts simply needed to assume this framework. That said, the less express or direct denial of the right of aliens

to entry and permanence could also be finally interpreted as a deliberate avoidance by the courts of this type of statement. An explanation for this can only be sought by going beyond the factors referred to above. Indeed, at the time of the country’s democratisation, immigration was not a massive phenomenon which had a strong impact on public opinion. Rather, immigration was only then beginning to assume real presence in Spain. In this sense, the courts could in fact refrain from a restrictive speech concerning immigration. Ultimately, the main concern for the courts, and, generally, for all the public authorities in a country coming out of forty years of dictatorship, seemed to be the declaration of clear principles and constitutional values that should preside from then onwards over all spheres of civil and political life, including the field of immigration[338]. In effect, since Franco’s death and Spain’s subsequent democratisation, a rhetoric of human rights and constitutional principles dominates all public discourse[339]. Indeed, even in the 1980 decision considered above, in which the Tribunal Supremo denied the existence of a right to entry and permanence, it was possible to observe an attempt by the Court to link this denial with a broader reflection on the rights of the person. As the Court argued, although the recognition of a universal character of freedom of movement is the common ideal of all nations, this aspiration has not yet been materialised, this freedom being thus still reserved to nationals, as provided by Article 19 of the Constitution[340]. This underlying reasoning is even more clear in the decision 94/1993 of the Spanish Constitutional Court (the Tribunal Constitucional), of 22 March 1993[341]. In this case, the Court upheld the exclusion of aliens from the right to entry and to permanence in the territory by arguing that this is not a right necessary to ensure respect for human dignity, the recognition of this right to aliens thus not being required. Therefore, the Court tried to explicitly legitimise this exclusion on the grounds of human dignity, instead of trying to justify this premise on the principle of sovereignty and on the corresponding right of the state to decide which aliens are to be authorised to enter the territory. This is the distinctive element of the Spanish judicial reasoning when proclaiming the non-existence of the right to entry and to permanence and, therefore, when constructing what is here defined as the premise of precariousness. As the Court argued, since freedom of movement cannot be qualified as a right of the person, it is consequently not a right that necessarily belongs to aliens[342]. 2. The justification of precariousness through the Constitution: different categories of fundamental rights. Following the argument referred to above, a fundamental aspect of the Spanish case is the specific reasoning followed by the courts in the sphere of immigration, this being structured on the notion of human dignity. Most significantly, both the conferral and the denial of rights seem to be explicitly inherent in this argumentation, in order to give a general coherence to the body of principles governing aliens’ status. As evidenced in relation to the decision 94/1993, the courts tend to justify under this notion the global constitutional position ultimately conferred on aliens. Indeed, in a country such as Spain that was entering a democratic system, the role played by a human rights legitimating discourse is evident. Nevertheless, the relevance of the political and social context alone cannot fully account for the specific reasoning followed by the courts. Even if the political and social context must be taken into consideration, the courts are already delimited clearly in their intervention, acting in

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the framework of a given normative basis, which, since the end of the Franco era, is the Constitution of 1978. This new fundamental norm is what seems ultimately and most fundamentally to transform the schemes of behaviour of all public authorities. In this sense, it is basically the constitutional structure on fundamental rights that imposes the necessity of coherence around the idea of human dignity and that, in this way, dictates the evolution and process of construction of a status for aliens. It is therefore through this optic that the scheme of intervention showed by the Spanish courts needs finally to be interpreted. Beyond the introduction of a body of general principles that guides the courts’ action, the Spanish Constitution establishes a specific normative basis which expressly and directly refers to aliens. This is a most distinct feature of the Spanish case concerning immigration, which can again be partly explained by Spain’s assumption of democratic and constitutional system much later than its European neighbours. Taking this into consideration, the draft of the Spanish Constitution can be seen as an imperfect reflection of these other countries’ experience, reformulated according to the specific circumstances prevalent in Spain. By the time of the approval of the Spanish Constitution, the importance of a specific provision regarding aliens was generally acknowledged. In this way, all judicial interventions concerning immigration were subsequently conditioned by a general normative framework of action and, therefore, by a global conception of the status of aliens. On the one hand, Article 10.1 of the Constitution establishes the principle of human dignity as the basis that guides the implementation of the rest of the principles and norms of the Constitution, by declaring it to constitute the basis for political order and social peace[343]. The courts, as with the other public authorities, are directly bound in their action by this fundamental general principle. Nevertheless, on questions concerning aliens, they are in effect also directly constrained by a specific constitutional provision, namely, Article 13 which sets out the fundamental premises in relation to aliens[344]. More specifically, in its first paragraph, it defines a framework of action for the public authorities by establishing the kind of rights that are to be recognised to aliens, setting thus the basis for the recognition of a general status. According to Article 13.1, aliens in Spain are to be conferred the rights and liberties recognised by Title I of the Constitution, in the terms defined by the law and the international treaties. The action of the Spanish courts is in this sense, with respect to other European cases, guided by specialised constitutional criteria when proceeding to the implementation of a normative structure on immigration. Notwithstanding the important restraint that this provision imposes on public authorities, the precise situation of aliens is not, as a consequence, sufficiently defined in this general framework. Article 13.1 sets out the fundamental premises that are to serve as the basic starting point, but the precise content and reach of the rights thus recognised to aliens still needs to be specified further. From this perspective, the case law in this field represents the further definition of these general premises. By trying to deduce the actual intention of the constituent power and, thus, the precise meaning of the criteria set by Article 13.1, the courts give expression and material shape to this constitutional provision in the praxis concerning aliens. Particularly significant from this point of view is the decision 107/1984 of the Constitutional Court, of 23 November 1984[345], which constitutes one of the first occasions on which the Court intervened in alien-related issues[346]. Although the question put before the Court was in itself quite precise (the existence or not of a right of aliens to work), the Tribunal Constitucional seized the occasion in order to define a

general framework, departing from the basic premise set by Article 13.1. The Court responded in this way to the then existing debate on the interpretation of that constitutional provision, as well as to the subsequent question of the constitutional status of aliens. The Court was clear in this respect: Article 13.1 does not intend to ‘‘de-constitutionalise’’ (desconstitucionalizar) the position of aliens by referring to both the law and the international treaties. The rights conferred on aliens are in effect constitutional, since Article 13.1 explicitly refers to the rights foreseen in Title I of the fundamental norm. However, according to the Court, these are rights of ‘‘legal configuration’’ (derechos de configuracio´n legal), which means that their precise content and reach are specified through the law or international treaties[347]. Following this reasoning, the Court established a fundamental tripartite classification of fundamental rights, on which all subsequent decisions are actually based. The Court distinguished between the rights inherent in human dignity (which belong to nationals and aliens in the same conditions), the rights expressly reserved to nationals (such as the ones recognised in Article 13.2 of the Constitution)[348], and, finally, the rights that can be extended to aliens through the law or international treaties[349]. According to this scheme, the Court rejected in that case the existence of an aliens’ right to work. In the view of the Tribunal Constitucional, the right to work neither represented a right inherent in human dignity, nor could its conferral on aliens be deduced from any normative text then in force[350]. In any case, from the perspective of the reasoning developed here, the determinant aspect of this decision is the criteria set for the classification of fundamental rights – that is, human dignity – and its subsequent subjective conferral, leading, in that case, to the denial of the right to work. Indeed, as previously analysed, the more general rejection of an aliens’ right to entry and to permanence also results from the implementation of this idea. Thus, the reformulation done by the Tribunal Constitucional of the basic premise set by the Constitution in Article 13.1, and its argumentation around the notion of human dignity, is what ultimately allows for the construction of a constitutional status for aliens, but also, however, the setting up of fundamental limits to this status[351]. II. The confirmation of precariousness in the abstract analysis 1. The subordination of personal freedom to immigration policy: limits to this right’s universal character. Throughout its interventions concerning immigration issues, the Constitutional Court has continued to implement this initial theoretical construction. The open character of Article 13.1 obliges the Court to continuously re-evaluate its initial response, verifying its validity with respect to every situation affecting aliens. In this way, the whole structure of fundamental rights contained in the Constitution is what is finally effectively reviewed. The later case law of the Tribunal Constitucional is in this sense a progressive corroboration of the general scheme on the constitutional position of aliens as defined initially by the Constitution and subsequently interpreted by the Court[352]. Ultimately, it is also a confirmation of the limits implied in it. The position of the Court concerning the right to personal liberty offers an example of this. Although the Tribunal Constitucional has left no doubt as to the universal character of the right to personal freedom, it has at the same time always categorically rejected the possibility of understanding this right as an eventual grounds for aliens’ permanence in the territory. As the Court argued in its decision 55/1996[353], the universal character of this right can by no means signify the necessary concession to

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aliens of a right to entry and to permanence. Moreover, developing further this reasoning, the Court affirmed that the imposition of limits on this right is in any event always justifiable – that is, also in the case of nationals – if both the objective pursued by it is legitimate and the restriction has been foreseen by the law. In accordance with this reasoning, the Tribunal Constitucional has admitted the legitimacy of mechanisms subordinated to the realisation of immigration policy, such as the ones directed to ensure that the alien effectively leaves the territory[354], as well as, consequently, the corresponding auxiliary measures. For instance, in the seminal decision 115/1987, the Court declared constitutional the measures of provisory detention and internment, despite the strong critiques that had been raised against the Aliens Act of 1985 in this respect. Fundamentally, the deprivation of personal freedom that these measures implied, even when no criminal infraction had been committed was criticised. [355] That said, the legitimacy itself of these two measures – administrative detention and provisional internment – was not questioned in the referral presented against the Aliens Act of 1985[356]. Despite the objections argued by a large segment of the legal scholarship against the use of these measures in such a context[357], the referral finally brought against the Act by the Defensor del Pueblo did not object to the introduction of such mechanisms[358]. In fact, the Defensor’s criticism was exclusively concentrated on one aspect of these measures[359]. More significantly, though, the Court also abstained from acting on its own initiative, not seizing the occasion of the referral in order to analyse the constitutionality of this mechanism. It simply restricted its examination to the only aspect identified by the Defensor del Pueblo for examination, and thus implicitly admitted the constitutionality of this instrument[360]. In the final analysis, the reasoning of the Court can be interpreted as trying to make the respect of the right of the state to control the immigration flows compatible with the rights that are nevertheless recognised to aliens by the Constitution itself. In this sense, the restrictions on the right to personal freedom are understood by the Court as inherent in the acceptance of mechanisms to keep unwanted aliens away from the territory. Moreover, as the Court seemed to sustain, the particular characterisation given by the law to these measures would actually counterbalance their impact on the right to personal liberty. For instance, when analysing the measure of internment in the decision 115/1987, the Court insisted on the necessary lack of penitentiary character of the centres foreseen in the Act, which in its view constitutes an additional guarantee for aliens[361]. According to the same reasoning, the Court, in its decision 55/1996, rejected the argument that the so-called international areas could be understood as permitting a deprivation of liberty, by arguing that aliens retained in that way could always abandon these areas in order to leave the country. 2. The definition of measures implying deprivation of liberty: the prevailing role of the administration. As previously indicated when analysing the impact on the right to personal freedom resulting from the Aliens Act of 1985[362], the Constitutional Court opted for restricting its analysis to the only aspect expressly criticised by the Defensor del Pueblo. Specifically, the referral questioned the possibility foreseen in the law of extending the detention of aliens during the procedure of expulsion[363]. According to the Defensor del Pueblo, the unconstitutionality of this provision would be due to the fact that the decision concerning the extension of the detention had not been defined clearly as falling within the competence of the judge.

As Article 26.2 of the Aliens Act of 1985 stated, after the time limit of seventy-two hours which the Constitution authorises for provisory detention, the administration could refer to the judge for the internment of the alien in non-penitentiary centres, for a period not longer than forty days. The ambiguity of the terminology employed in the law (‘‘interesar el internamiento’’) was behind the debate surrounding this provision. From the wording of the text it was not clear whether the competence to order internment was indeed conferred on the administration, it needing simply to communicate it to the judge – and thus, to a certain extent, involve the judge in the adoption of the decision – or whether, instead, the decision remained part of the competence of the judiciary. In this latter case, the administration would only have the power to initiate the procedure. Ultimately, it was a question of determining the degree of participation of the judge in that decision and, therefore, the final nature of the deprivation of liberty – administrative or judicial. According to the arguments presented in the referral, the ambivalence of the term ‘‘interesar’’ was too great to ensure respect of the exclusive competence of the judiciary concerning decisions on deprivation of liberty. As provided by Article 17.2 of the Constitution, once the limit of seventy-two hours of provisory detention expires, all decisions concerning deprivation of personal freedom fall exclusively within the competence of the judge. As expressed in the referral, the mere involvement of the judiciary by the administration in the adoption of the decision of internment did not suffice to comply with this constitutional requirement. Nevertheless, although the Tribunal Constitucional acknowledged the equivocal character of the formula chosen by the legislator, it refused to declare the provision contrary to the Constitution. It opted, instead, for delimiting an interpretation of the provision that could be in conformity with the constitutional parameters, and thus preserve the text of the Act[364]. The Court insisted on the particularity of the sphere in question, in a way trying to justify further its decision not to declare Article 26.2 unconstitutional despite the ambiguity of the term. It thus argued that the administration played a special role in those cases: the administration did not act in its usual – merely auxiliary – role in its exercise of state criminal law and justice, but rather pursued a specific public aim. Moreover, in the view of the Court, the term ‘‘interesar’’ had to be understood as implying the exclusive competence of the judge to order the internment of aliens. As the Constitutional Court confirmed, the judge is the natural guardian of individual liberty, notwithstanding the administrative character of the expulsion orders[365]. Nevertheless, in spite of these warnings and of the Court’s insistence on the ultimate judicial nature of the deprivation of liberty foreseen in the Act, the controversial ambivalence of the provision was not resolved. It is therefore not surprising that an important segment of the legal scholarship still raised serious objections to the reasoning followed in this decision. Fundamentally, the Court was criticised for not having impeded an ambiguity that would have repercussions on the implementation of the Act and because of having thus not averted unnecessary dangers for the rights of aliens[366]. Ultimately, according to this view, by refusing to modify the wording of the text, the imposition of measures restricting personal freedom remained, in practice, dependant on the administration. III. The realisation of precariousness in judicial practice 1. The exceptionality in immigration: reluctant suspension of administrative orders. After having analysed the abstract definition by the courts of the general

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premises of immigration law and, thus, of the limits that affect the constitutional status of aliens, the following analysis intends to concentrate on a more concrete dimension of the courts’ reasoning. Essentially, it intends to show that other types of limits – less general and abstract – for the protection of aliens are implied in the judicial activity. Actually, these are limits that are not expressly declared by the courts, but merely implicit in their reasoning. In the final analysis, thus, they reflect the underlying and unsystematic perception of the phenomenon of immigration by the courts – and, therefore, ultimately – by society. As previously indicated, the Tribunal Constitutional tends to insist on the special difficulties posed by immigration in order to justify the restrictive policies in this sphere. Following this reasoning, the reception of immigration should be organised according to specialised criteria. However, instead of establishing directly in law the exceptions to the general parameters, they are often consecrated de facto, in the praxis of the public authorities, this being the significant aspect of the sphere of immigration. By accepting this, the courts seem to implicitly defend a conception of immigration law as not only requiring ad hoc rules and especially wide administrative prerogatives, but also as exempted from the most basic general guarantees. Ultimately, by not censuring this, the courts participate in the building and consolidation of a state of exceptionality. The underlying perception of immigration is particularly visible in the judicial control of the administration. It is in this later and concrete stage in the construction of aliens law when the exceptionality from which immigration seems to be perceived by the legal actors is of paramount importance. Indeed, when controlling the administrative implementation of the law, the courts effectively interact with the material reception of immigration. They incorporate into the abstract parameters the social perception of the phenomenon. In the final analysis, the capacity and actual readiness of a society to adapt to this new reality is in this way tested. From this point of view, the real impact and final reach of the general structure of fundamental rights is what is finally at stake, in its capacity to influence or, even, to prevail over the social and contingent understanding of this type of phenomenon. An example of this is to be found in the field of interim relief, where the courts showed an important initial resistance to extending to the sphere of immigration a principle already admitted and thus commonly implemented in other areas. This is the principle of suspension concerning the execution of administrative acts. As declared in Article 103.1 of the Constitution[367], Spanish administrative law is strongly based on the idea of the effectiveness of the administration, which implies the conferral on this public authority of self-executive power. In this sense, the suspension of the execution of administrative acts is only accepted as an exception to the general rule. Until the law reform of 1998, this idea was structured on a bipartite system. On the one hand, the Act of 1956 on administrative judicial review (later substituted by the Act 29/1998)[368] consecrated the immediate execution of administrative acts by nevertheless admitting the possibility of suspension when damage or harm which could prove impossible or difficult to compensate risked occurring as a result of the execution of a deportation order[369]. Only with respect to the more restricted sphere of fundamental rights was the alternative principle admitted. This was stipulated in the Act 62/1978, on judicial protection of fundamental rights[370], which in its Article 7.4 regulated the possibility of suspending the execution of administrative acts whenever this execution could result in the violation of a fundamental right. In this way, it

exempted from the otherwise general requirement to prove the existence of a potentially irreparable harm[371]. This duality has in effect disappeared today with the reform of 1998, which suppressed the special rule foreseen in the Act of 1978 for the sphere of fundamental rights. The norm currently in force has not completely removed the possibility of suspension, but it does however confer a very wide discretionary margin of appreciation on the judge[372]. According to Article 130 of the Act of 1998, the suspension can now only be ordered if the execution can render the appeal against the administrative act useless. Nevertheless, it is in any case still possible to proceed to execution if the suspension can represent a disturbance to general or private interests[373]. Therefore, until the reform of 1998, the solution reached as response to the legislative duality was based on Article 7 of the Act 62/1978: in the sphere of fundamental rights, the courts could order the suspension of the execution of the administrative act at issue, except if a serious harm for the general interest could derive from it. It was then up to the administration to demonstrate the possible existence of such a harm[374]. The question then subsequently posed was to define when this possibility of harm could be considered to exist. The judicial response given to this question in effect corroborates the particularity of the sphere of immigration. In contrast to most legal areas, in which it soon became possible to observe a judicial trend towards facilitating the suspension of the execution, the courts proved much more reluctant to follow this general approach in the field of immigration[375]. The incorporation of this field into the general trends took place only later. Thus, the possibility of serious harm to the general interest was for a long time often assumed by the courts without requiring from the administration a strict demonstration of its existence. Examples of these first restrictive interventions of the Tribunal Supremo are for instance to be found in the series of decisions (specifically, autos) concerning orders of expulsions and are presented here to indicate the exceptionality that has characterised the construction of immigration law. Indeed, no explicit justification was foreseen for the exclusion of aliens from the general procedural guarantee. Judicial practice simply consolidated this approach, the courts having refused to implement in the sphere of immigration the principles that prevailed in other areas. The decisions referred to here intend thus to illustrate this phenomenon, although no exhaustive or systematic analysis of this case law will be carried out. Simply, some decisions which are particularly expressive of this restrictive trend will be referred to here[376]. Indeed, the ultimate feature of this case law is the acceptance of generic reasons presented by the administration in order to demonstrate the existence of harm to the public interest and thus deny a stay on the execution of the order. Significant of this restrictive trend is not only the type of arguments accepted by the Supreme Court, but also the degree of proof that the Court requires from the administration in order to justify the real materialisation of the harm. In this sense, the Court accepted in some of these occasions that harm could be caused by provoking public disorder (decision of 11 October 1990)[377], or, simply, by begging (decision of 24 October 1990)[378]. In the final analysis, thus, the Tribunal Supremo has accepted a very general argumentation by the administration, to the extent of practically neutralising, for the sphere of immigration, the conception on which the mechanism of suspension is based. Particularly illustrative of this is for instance a decision in which the Tribunal Supremo

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reasoned that the prolongation of situations of irregularity could create great harm for the labour market and, therefore, for the rights of both nationals and regularised alien workers (decision of 6 June 1991)[379]. As the Court argued in this decision, given the large number of expulsions that could be affected as a result, the acceptance of the suspension in individual cases could actually lead to the general inapplicability of the Aliens Act. In this way, the Court declared legitimate the rejection of the suspension, on the grounds of its further practical consequences. Following a similar line of reasoning, the Tribunal Supremo also refused to authorise suspensions in the sphere of immigration by arguing that, in the case of general norms, such as the Aliens Act, the suspensive effect can cause serious harm and uncertainty, given that a very large number of people are potentially affected by it (decision of 31 December 1990)[380]. 2. The denial of the changes brought by immigration: prevalence of public security considerations. The analysis presented in this section will concentrate on the decision 13/2001 of 29 January 2001 of the Tribunal Constitucional[381]. In confirmation of the analysis developed above, it will be argued that certain judicial interventions, beyond representing an implementation and further development of the constitutional parameters, fundamentally reflect the underlying social perception of the phenomenon of immigration. As the analysis of this decision will try to illustrate, sometimes such interventions are even an affirmation of society’s own process and rhythm of reception of this phenomenon. As in the previous analysis, this decision has been selected to illustrate the judicial legitimisation of the exceptionality characterising immigration. As opposed to the previous judgments, though, the Tribunal Constitucional is in this case directly confronted with the problems posed by immigration, and, thus, to a certain extent prompted to express its view thereon. From this perspective, the decision allows one to understand in a more direct way the transformations and degree of maturing of this new reality in the Spanish society. In this sense, the significant and eloquent element of this ruling is precisely the reserve shown by the Court. Indeed, despite the relevance of the question posed, the Court did not declare its opinion. It deliberately limited its analysis to a very restricted aspect of immigration. Therefore, what this decision ultimately reflects is not so much a particular perception of immigration but a fundamental lack of awareness in Spain of that phenomenon. At most, it reveals its still only very partial perception of it, essentially limited to the dimension of police and public security. From this point of view, an analysis of the degree and capacity of impact of the abstract parameters is also intended here indirectly. It is thus to be discerned whether the existence of a comprehensive system of fundamental rights, as Spain has, suffices in order to condition a certain development in the reception of this phenomenon, or whether, instead, further elements still play a key role in the completion of that process. Indeed, the analysis of the case of Spain essentially reveals an important gap between a very modern constitutional structure – which explicitly foresees the recognition of a constitutional status for aliens – and the serious lack of experience concerning immigration. It is this latter inexperience which seems to explain significant features of Spanish aliens law. Ultimately, the idea sustained here is that further dimensions other than normative structures are in effect necessary to proceed to a correct reception of the phenomenon as immigration, which poses completely new challenges for society in the host country.

Actually, the existence of an efficient system of protection of fundamental rights usually compensates for Spain’s lack of contact with immigration. This lack of contact, however, becomes determinant when the courts have to go beyond what is explicitly foreseen in the constitutional provisions, there being no clear response in the legal order, nor, ultimately, in society. In such cases, the potentiality of the constitutional parameters seems to be neutralised by the impact of social perception. The decision 13/2001 becomes particularly revealing from this perspective. On that occasion, the Court ratified the denial of the state’s liability in a case concerning police identification controls effected on aliens. The liability of the state was claimed by an individual – a national – by arguing that moral harm had been caused by an allegedly racial discrimination perpetrated by the police. The national in question had been stopped by the police during a routine identity control in a train station, the police agents in charge having argued that her physical appearance (the person being black in colour) constituted a sign of foreign nationality. The question thus ultimately put before the Tribunal Constitucional was whether aliens can legitimately be subject to this type of indiscriminate controls and, also, more specifically, whether these controls can be effectively carried out on the basis of racial criteria. The Court concentrated its analysis on the principle of equality recognised in Article 14 of the Constitution, in order to determine whether discrimination on the grounds of race had been committed. The Tribunal Constitucional started its reasoning forthrightly rejecting any kind of racial discrimination, both direct and concealed, in accordance with the wording of Article 14, which expressly prohibits this discrimination in any form[382]. Nevertheless, it concluded its argumentation by affirming that understanding certain races as a sign of non-Spanish nationality did not constitute discrimination in the sense of Article 14. According to the Court, no direct discrimination had been committed since, firstly, the police had acted under a normative provision that authorised that kind of control[383], also, no proof existed of the perpetration by the police of a degrading or humiliating treatment. Thus, the question subsequently put was whether an indirect discrimination could have been caused, however, by admitting the use of the race as indicative of probable foreign nationality. The Court refused this as well, by arguing that this criterion was used as merely descriptive. According to the Court, discrimination would have been committed if the criterion selected had been irrelevant for the individualisation of the person questioned by the police. However, this was not the case. Moreover, in the reasoning of the Court, the harm thus generated could be qualified as a ‘‘minor inconvenience’’, ‘‘reasonably falling within the costs inherent in living in society’’[384]. The Court refused in this way to analyse the real set of problems at stake and missed out on the occasion to anticipate the decision on the constitutionality of the new Aliens Act of 2000[385]. In effect, such an intervention is greatly expected, since the Court has not had the possibility to express a general view in this sphere since the decision 115/1987, after which immigration has acquired entirely new features and dimensions in Spain. Instead of seizing the occasion to define the parameters for this new emerging reality, the Tribunal Constitucional seemed to stick to a vision of a still single-racial and single-cultural country, where immigration is not explicitly recognised as a further defining component of its society. This is the main critique expressed in the dissenting opinion (voto particular), arguing that the decision ignores the social context in which the constitutional parameters are to be implemented. According to the dissenting member of the Court,

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the use of racial criteria is discriminatory from the perspective of the new reality introduced by immigration. In his view, the decision sidelines the problems that the acceptance of such criteria can pose for the future of Spain as an immigration country, generating new potential harm and discrimination. Moreover, even if accepting the prevalence of public security or the protection of the national labour market over other constitutional aims and rights such as equality, the principle of proportionality should in any event be respected. This decision, though, instead of limiting the possibility of identity controls to specific areas such as borders, legitimised a much broader and unrestricted use of such controls[386]. In this way, despite the new official guidelines of Spanish aliens law, oriented towards the social integration of aliens[387], the dimension of police and public security was implicitly confirmed as the predominant variable. Ultimately, by refusing a more global debate, the Court questioned the conversion of Spain into a country of immigration, evidencing, finally, the scarce readiness of Spanish society for a thorough integration of that phenomenon, in spite of the country’s comprehensive and systematic structure of fundamental rights and constitutional guarantees. B. Emergent rights: the impact of the new constitutional framework I. The introduction of procedural limits to precariousness 1. Framing the prerogatives of the administration: constitutional guarantees in the imposition of sanctions. The approval of the Constitution of 1978 transformed the Spanish normative and political fundamental structure, and consequently altered the schemes of behaviour of the public authorities. In effect, a complete and systematic catalogue of fundamental rights and of corresponding constitutional guarantees was established, thus unifying these authorities under a single reasoning. The process of adaptation, though, was not of uniform character. Its intensity and rhythm of realisation differed greatly in each sphere, according to the nature and features of the different competent public authorities. Among these, the courts were the ones firstly and most directly affected, assuming rapidly the new criteria. Indeed, whereas for the rest of authorities the Constitution represents the parameters that limit their intervention, in the case of the courts their intervention is directly dictated by it. Ultimately, it is through the judiciary that the effective reception by the other authorities of these new constitutional principles was finally possible. The definition by the Constitution of an efficient and comprehensive system of judicial remedies placed under the supervision of the courts the expansion of the new constitutional reasoning to all the areas. More specifically, as regards the initial administrative inertia vis-a`-vis the new general constitutional framework, the courts were the ones that started asserting the constitutional dimension and imposing the consequences of such findings on the administration. The main activity of the judiciary, though, concentrated on the constitutionalisation of a domain left until then to the practically exclusive discretionary criteria of the administration: the imposition of administrative sanctions. The existence of such great administrative prerogatives was particularly problematic in the domain of immigration, where no clear normative guidelines or praxis had ever been established[388]. A law reform that would unify hitherto dispersed norms had become a fundamental claim among legal scholars and immigration law practitioners[389]. In this sense, the role played by the courts was most crucial in this domain, compensating for the lack of normative criteria[390]. Nevertheless, the relevance of the courts’ contribution to the construction of aliens’

constitutional status persisted also after the approval of the Act of 1985. The courts then helped to consolidate the integration of the constitutional variable in administrative practice[391]. The Tribunal Supremo’s decision of 3 July 1980 is particularly illustrative from this point of view, representing the initial implementation of the constitutional guarantees in the field of immigration and, thus, the introduction of a series of safeguards as limits on administrative prerogatives[392]. The Court rejected the generic arguments presented by the administration (‘‘irregular conduct’’) in order to justify the expulsion, and affirmed the principle of presumption of innocence[393]. Most importantly, however, the Court censured what at the time was becoming a common administrative practice: the imposition of sanctions without hearing the person affected by it (sanciones de plano). In order to do this, the Court referred to Article 13 of the International Covenant on Civil and Political Rights (hereinafter ICCPR), which provides that aliens can only be deported by orders adopted in conformity with the law and after having heard the alien, except in cases of absolute necessity for the national security[394]. The later case law of the Court confirms this principle, the possibility of suppressing the right to a hearing in exceptional circumstances only[395]. Through this rather technical and concise response, the Tribunal Supremo started offering an answer to the lack of normative guides and, thus, ultimately, to the situation of exceptionality that characterised immigration. By providing specific but persistent solutions to the questions arising in this sphere, the Court contributed to the construction of a new normative framework[396]. The mechanisms offered to the courts by the new Constitution were thus of decisive importance. For instance, the significance of Article 10.2 of the Constitution is great in this respect, since it makes immediate reference to international treaties and case law for the interpretation of fundamental rights possible[397]. In the case indicated above, it allowed for the consecration of the right to hearing by referring to the ICCPR[398]. Likewise, in another series of decisions, the Tribunal Supremo affirmed the full validity of the rule of law in the sphere of immigration and, specifically, in relation to the administrative imposition of sanctions, by asserting the principio de legalidad. In the decision of 14 June 1984[399], the Court gave general validity to its previous interventions on this issue[400], and consecrated this idea by directly referring to the Constitution[401]. As the Court argued, although the particular complexity of the field of immigration requires granting effectiveness to the administration and, therefore, the conferral of wide prerogatives, this cannot lead, however, to the recognition of arbitrary powers. Consequently, the causes of expulsion invoked cannot be generic, the administration having to justify the reasons and the conformity of its action with the legal order. In this way, the Court required a correspondence between the facts proved and the order adopted by the administration[402]. 2. Constitutional safeguards vis-a`-vis the legislator: the universal character of the right to due process. According to the previous section, during the first years after the end of the Franco era, the main feature in the reception of immigration was the lack of normative criteria to guide the action of the administration. In this sense, the promulgation of a legislative act was expected to resolve the long criticised situation of uncertainty, by offering a definitive and systematic body of principles. Ultimately, thus, the act was originally intended to substitute for the temporary judicial remedy. Nevertheless, the material response finally given in 1985 by the legislator did not fulfil these expectations. Its content was concentrated on limited aspects of the regulation of this phenomenon. It represented, on the one hand, an essentially

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police-oriented type of response, mainly focused on the entry and permanence of aliens into the territory, and which thus ignored essential dimensions such as the status of permanent residents. Most importantly, though, the Aliens Act of 1985 also signified the legalisation of the wide prerogatives that the administration had been enjoying, by simply confirming the vague principles consecrated in administrative practice, and against which the intervention of the courts had intended to react. In this sense, the Act of 1985 (as well as the Regulation of 1986 for its implementation)[403], instead of representing a solution to the long existing situation of wide administrative prerogatives and of provisory judicial solutions, ultimately represented a regression. Once the wide margin of action of the administration was legalised, the courts could no longer proceed to the direct implementation of the constitutional principles in order to censure administrative practice[404]. Article 34 of the Aliens Act of 1985 is particularly expressive of this idea, since it directly addresses the question of the control exercised by the courts[405]. Essentially, by impeding, in the field of immigration, any possibility of suspension of administrative orders, this provision represented the legitimisation by the legislator of the conferral of wide prerogatives on the administration. Ultimately, it signified the neutralisation of the new emerging and expanding movement of judicial interventionism vis-a`-vis the administration. This provision in effect constituted one of the most controversial provisions of the Act, having raised fundamental critiques among legal scholars and law practitioners. Most significantly, its implementation was rejected by the courts, even before the pronouncement by the Tribunal Constitucional on this issue[406]. In this sense, decision 115/1987 represents the turning point in this debate. It signified the confirmation, over the legislator, of the principle anticipated by the lower jurisdictions and, thus, ultimately, the legitimisation of the courts’ interventionism. The Court declared the unconstitutionality of Article 34 of the Act and asserted the possibility of judicial suspension as an essential element of the right to due process. The Court adhered partially to the reasons argued in defence of the provision and admitted, thus, that the principle of suspension was not expressly foreseen in Article 24.1 of the Constitution as part of the right to due process[407]. In this sense, the Court accepted the subordination of this possibility to other constitutional values such as public order, national defence or the protection of the rights of nationals. However, the Court argued at the same time that it is precisely this balancing of interests that the courts are expected to assure, the preservation of the possibility of judicial suspension being therefore essential[408]. In this way, this decision ultimately represents the confirmation of the universal character of the right to due process, through a more specific manifestation of this right, which is the principle of suspension[409]. The universality of the right to due process (tutela judicial efectiva) had constituted a divisive issue, representing, during the first years of entry into force of the Constitution, a much debated question. Although Article 24.1 explicitly recognises this right as belonging to the person, when regulating the specific mechanisms of judicial protection, the Constitution, in its Article 53.2, seems nevertheless to reserve to nationals access to the specific judicial remedies for the protection of fundamental rights. In this way, both the special procedure before the ordinary courts (juicio preferente y sumario, established by Act 62/1978 on the protection of fundamental rights) and the constitutional complaint before the Tribunal Constitucional (recurso de amparo, which allows individuals to claim protection before

this Court in cases of violation of fundamental rights by public authorities) seemed to be denied to aliens[410]. In this sense, the debate was focused on the access of aliens to the recurso de amparo, as the expression of the more general right to due process[411]. It was with decision 99/1985 that the Tribunal Constitucional closed definitely this discussion[412]. In turn, this ruling represented an implementation of the general scheme on fundamental rights outlined in decision 107/1984[413]. Following the tripartite classification established on that occasion, the Court declared in decision 99/1985 that the right to due process belonged to the category of rights inherent in human dignity and, therefore, pertained equally to nationals and aliens[414]. The administration had argued, against the acceptance of the referral presented by a German national, the lack of active legitimacy, in the case of aliens, in order to appeal before the Constitutional Court[415]. The Court rejected this argument and confirmed the universality proclaimed by Article 24.1 of the right to due process[416]. Although the Constitution is the result of the work of Spanish nationals, the Court found that the application of its content is not limited to them. This principle has been recently restated by the Constitutional Court, in its decision of 22 May 2003, concerning the constitutionality of Act 1/1996, on the right to free legal assistance[417]. In this way, the Court has in turn confirmed its previous decisions on the right to due process (STC 107/1984 and STC 99/1985). In this decision, the Court declared the exclusion of clandestine aliens from the right to free legal assistance unconstitutional[418], this constituting a violation of the right to due process as proclaimed by Article 24.1 of the Constitution. Indeed, as the Court argued, this right is of universal character, and thus includes aliens, irrespective, moreover, of the regularity of their administrative situation[419]. II. The consolidation of substantive limits to precariousness 1. Absolute restraints for the administration: intertwined development of due process and personal liberty. The analysis proposed for this section intends to show how the Spanish courts, beyond limiting the imposition and the concrete use of administrative sanctions, have also introduced wider and more fundamental restraints. In this sense, the conferral of fundamental rights on aliens is presented here as the completion of a further and crucial stage in the construction of aliens’ constitutional status. As it will be argued, it represents the consolidation of general and absolute limits to the action of the public authorities concerning immigration. Indeed, the definition of aliens as real holders of fundamental rights is what ultimately confers on them a position of autonomy with regard to the prerogatives enjoyed by the administration. In this way, the administration is limited, not only by the constitutional principles that dictate in any case its possibilities of intervention, but also, and more importantly, by the existence of a constitutional status that stands by itself and is independent of administrative authorisations. Although the existence of such a constitutional position is already recognised by the Constitution in Article 13.1, it is finally the material conferral of content and reach on these rights which effectively subordinates the action of the administration to a new reasoning[420]. Likewise, the optic from which the courts depart in this subsequent stage is also different. As in the case of the Tribunal Supremo, through which the body of technical limits for the administration had been predominantly achieved, the Tribunal Constitucional intervenes on these occasions from a rather concrete perspective. It proceeds to the implementation of the general and abstract schemes that it had

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previously defined, thus contributing to the empirical construction of responses to the problems raised by immigration. However, as opposed to the Tribunal Supremo, the perspective prevailing in the interventions of the Tribunal Constitucional is less distinct. Since these are decisions concerning the violation of fundamental rights (recurso de amparo), and are thus conditioned by the general scheme on this type of rights, they still envisage the abstract construction of a global constitutional status, and not so much the immediate necessity of technical responses. From this perspective, the cases of due process and personal liberty will be analysed here. Taking further the reasoning developed in the previous section, in which the affirmation by the Constitutional Court of the universality of the right to due process was examined, the definition of this right in the subsequent case law of the Court is the object of this section. It is through a series of decisions concerning the conferral of habeas corpus that the Court elaborated the content and reach of the right of aliens to due process, this leading in turn to the same development for the right to personal liberty. In this sense, these two rights will be analysed together, according to their intertwined evolution in the case law. Departing from the premises set in its fundamental decision 115/1987, in which the Tribunal Constitucional defined the double aim of the judicial intervention in the adoption of orders involving deprivation of liberty, the later case law of the Court has developed further the content of the notion of judicial protection. According to the reasoning of the Court in the 1987 decision, the intervention of the judge is, on the one hand, directed to grant that no arbitrary deprivation of liberty is committed. On the other, the judge intervenes in order to assure that aliens have effective means of defence before the administrative decision. Indeed, some years later, in decision 12/1994, of 17 January 1994[421], the Tribunal Constitucional was confronted with a case in which the mechanism of habeas corpus concerned an alien. On these grounds, the Court indirectly delimited the content and reach of aliens’ right to personal liberty, as well as the correlative limits for the administration. Ultimately, the Court also imposed specific obligations on the judiciary. As it had already affirmed in decision 115/1987, the Tribunal Constitucional declared here the exclusive competence of the judiciary in order to impose measures restricting personal liberty. The question posed on this occasion, though, was whether the judge had violated the right to due process by denying the habeas corpus requested and whether, in turn, by maintaining an illegal situation of detention, it had indirectly caused a violation of the right to personal liberty. As the Court declared, the process of habeas corpus is of a very particular nature, its aim being strictly limited to the initial verification of the legality of the provisory deprivation of liberty. In this sense, although the judgement in the sphere of the habeas corpus is also merely provisory, in order to effectively grant this protection, it necessarily has to involve an analysis of the causes of detention argued by the administration. This was precisely what the judge of the habeas corpus had refused to do by claiming that the evaluation of the decision – which had been adopted in spite of the existence of an asylum application -[422] exceeded its competence, this control falling more properly to the administrative jurisdiction. As the Constitutional Court argued, although the final decision on the legality of the administrative order does correspond to the competence of the administrative jurisdiction, the judge of the habeas corpus must nevertheless proceed to a first control. This notwithstanding, the Court developed further its reasoning and added that the error that the judge had thus committed would have been relevant only if it had

materially led to an illegal deprivation of liberty, which, in the opinion of the Court, was not so in the present case. In its view, the request for asylum – which as such justified the conferral of the habeas corpus – had not been done correctly. The Court averred that it was even possible to presume the underlying will of the alien to paralyse the procedure of devolucio´n. Therefore, in the context of this special guarantee, the right to due process obliges the judges to justify and explain their reasons of denial of the habeas corpus. In its decision 96/1995, of 19 June 1995[423], the Tribunal Constitucional refined its previous case law in this respect. Reproducing the reasoning already given in other decisions[424], the Court censured the judge for having based his rejection of the application on only generic reasons, and for not having proceeded to a detailed analysis of the circumstances involved[425]. Furthermore, insisting on the principle of exceptionality, which according to its case law should govern the restriction of personal liberty[426], the Court also censured the non-respect of procedural guarantees such as the right to hearing or the principle of defence[427]. Although the judge of the habeas corpus had tried to justify his omission by arguing that no such obligation was expressed in the text of the Aliens Act, the Court declared the nevertheless imperative character of such guarantees according to superior norms such as the Spanish Constitution and the ECHR[428]. The subsequent interventions of the Tribunal Constitucional in the context of the habeas corpus constitute a further development of these principles[429]. As the Court has repeatedly stated, in the case of the existence of a minimal doubt concerning the legality of the deprivation of liberty, the possibility of appearance before the judge has to be granted[430], this being the special guarantee that the procedure of habeas corpus represents[431]. A further characterisation of these rights has finally been achieved, however, in other areas. For instance, in relation to the right to personal liberty, the Tribunal Supremo’s decision of 20 March 2003[432], in which the Court declared illegal some of the provisions of the Regulation of implementation of the new Aliens Act of 2000[433], has proven fundamental. One of the main aspects of the Regulation that has been censured by the Court concerns, in effect, the right to personal liberty[434]. Yet, the problems analysed by the Tribunal Supremo differ from the ones observed in the constitutional case law. On this occasion, the Court has concentrated its argumentation on the principle known as reserva de ley, as a fundamental guarantee of this right. Essentially, the Court declared some of the measures of deprivation of liberty established in the text of the Regulation illegal, arguing that the Act does not authorise such a deprivation in all the cases foreseen by the Regulation. According to Article 53.1 of the Constitution[435], the exercise of fundamental rights, among which personal liberty is in effect included, can only be defined through the law[436]. In this way, the Tribunal Supremo actually confirmed the trend initiated by lower courts (Tribunale Superiore de Justicia Andaluc´ia), condemning the general use of the measures of internment. As the Tribunal Supremo ratified in this decision, the legislator had only authorised the immediate rejection of the aliens that are detained while trying to enter illegally the territory, but not their internment. Ultimately, thus, by declaring that the government acted without the necessary legitimisation, the Tribunal Supremo ratified the universal character of the right to personal liberty.

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2. Deducing new general limits for the legislator: the cases of assembly and association. The following analysis intends to insist on the importance of the case law on fundamental rights by further examining its ultimate implications. It will try to scrutinise the causes of this impact, in order to see whether additional consequences are in effect implied. In this sense, it will be argued that the limits for public authorities do not only emerge from the individual and concrete definition of the fundamental rights, but also from the implementation of the general constitutional parameters concerning these rights. For this purpose, and in contrast to the type of case law analysed above, the decision presented here refers directly and exclusively to the interpretation of these abstract parameters that govern the functioning and protection of the fundamental rights. Although it also focuses on the further delimitation of the content of aliens’ fundamental rights, this is not done with respect to a practical situation, but by simply referring to the constitutional criteria of protection of these rights. In this sense, the decision 115/1987 is examined here, concerning the abstract control of the constitutionality of the Aliens Act of 1985. The analysis proposed here intends to show how other public authorities, apart from the administration, have been limited progressively in their possibilities of intervention through this expanding case law on fundamental rights. In effect, the analysis developed in the previous section has already demonstrated how the judiciary has also been restrained by this constitutional case law. Following this line of thought, this section concentrates on the case of the legislator. Indeed, due to the nature and features of its function, the legislative power is not so much influenced by the practical definition of fundamental rights, as by the interpretation of the abstract and general constitutional parameters. As opposed to the executive or the judicial authorities, it is essentially according to these parameters that the legislator has to organise its activity. In the final analysis, thus, the analysis presented here intends to evidence the possibilities of constant evolution, which are implied in this scheme, for the constitutional status of aliens. Although the text of the Constitution explicitly recognises aliens as holders of fundamental rights, the analysis developed above had intended to show how these rights, understood as limits for the administration, only become finally effective through their implementation. Ultimately, the open and abstract character of the formula established in Article 13.1 of the Constitution is what mandates the interpretation of the premises contained in it and, in this way, the constant re-evaluation of its general scheme. In effect, the Tribunal Constitucional is led to continuously revise its initial response given in its seminal decision 107/1984[437], thus verifying anew its validity as well as, ultimately, reformulating its content. The Court is in practice obliged to progressively corroborate, case by case, the general scheme on aliens’ constitutional status by further implementing the constitutional general parameters related to fundamental rights. In this way, it is not only the more restricted scheme on aliens’ status that is thus continuously revised, but also, and more importantly, the general structure of fundamental rights. Two rights will be studied here. These are the fundamental rights to peaceful assembly and to association, as defined by the case law of the Tribunal Constitucional. Though, as already indicated, the ultimate object of this analysis is not so much the specific judicial construction of these rights, as the implementation by the Court of the general constitutional parameters. From this perspective, the analysis of these rights, which was raised by the referral presented against the Aliens Act of 1985, offered the

occasion to implement and develop further these general parameters. Ultimately, it gave the opportunity to set new limits to the action of the public authorities in the sphere of immigration, thus overcoming the initial general scheme defined by the Tribunal Constitucional in the decision 107/1984. In the case of the first of these rights, the right to peaceful assembly, the legislator had foreseen (in Article 7 of the Act of 1985) the requirement of a prior administrative authorisation in order to allow for the exercise of this right by aliens. As the Tribunal Constitucional declared, the introduction of such a requirement is contrary to Article 21 of the Constitution[438], which defines the right to peaceful assembly as a right of direct exercise. Indeed, as the Court argued, the ultimate question posed was not so much whether a different treatment was possible in the case of aliens as the administration had argued in defence of that provision, but rather whether the provision violated the ‘‘essential content’’ (contenido esencial) of the fundamental right. In the opinion of the Court, the introduction of such a requirement was not merely a procedural condition added by the legislator but, rather, a substantive condition which, as such, altered the constitutional understanding of the right. The right to assembly was in this way denaturalised. Likewise, in the case of the right to association, the question put before the Court was whether the mechanism (foreseen in Article 8 of the Act) of administrative suspension of associations of aliens could be considered consistent with Article 22 of the Constitution, since this provision only contemplates the possibility of judicial suspension[439]. The Tribunal Constitucional declared that the Act violated the content of the right recognised by the Constitution. Moreover, going back to the general scheme established in its previous decision 107/1984, the Court developed further this reasoning and affirmed that although aliens’ rights are in effect of ‘‘legal configuration’’ (configuracio´n legal), if the Constitution has already given a precise shape to these rights – as in the case of Article 22 – it is no longer possible for the legislator to introduce further conditions. In this sense, with respect to the fundamental scheme that had been defined in the decision of 1984, and which represents the basis of all its later case law, the Tribunal Constitucional proceeded here to a further definition of limits for the public authorities. Ultimately, it put into effect the basis defined in that previous decision for the recognition of a constitutional status to aliens, the action of the legislator being limited on this occasion[440]. III. Questioning the premise of precariousness by courts 1. Extending freedom of movement to aliens: reinforcement of judicial review concerning expulsions. The last analysis in this chapter intends to evaluate the ultimate reach and possibilities of impact of the constitutional structure, as consolidated through the action of the courts. Its aim is thus to observe the precise capacity for influence that this judicial interventionism has finally had in the construction of aliens’ constitutional status. In this sense, it will be analysed whether the right of the state to decide which aliens are to be granted entry and stay in the territory has been effectively questioned and consequently altered by the case law or, whether, instead, the action of the courts has not reached in Spain the levels observed in other countries. In order to do this, the case law of the courts in the sphere of freedom of movement will be presented. It is thus to be analysed whether through the construction of this right and, more specifically, through the global understanding to which it leads in

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relation to the constitutional framework, a right of entry and permanence is effectively granted to aliens. The necessity of unity and general coherence is already implied in the structure of the Spanish constitutional system. From this perspective, even on occasions when only technical and specific responses are required, the courts proceed to a broad and interrelated interpretation of the different relevant provisions, thus indirectly reinforcing a global conception of the normative framework. However, in this emerging and ongoing reconstruction of the legal system, they have sometimes gone so far as to omit the very wording of the provision being implemented, thereby ultimately creating a new norm. The extension of freedom of movement to aliens was in effect done through an indirect process, driven by the necessity of resolving a rather technical and specific issue. In this sense, the ultimately relevant aspect of this process is the reasoning followed by the courts to justify their course of action. In procedures concerning aliens’ expulsions, the question inevitably arising was whether aliens could access to the special judicial procedure for the protection of fundamental rights. According to the Act 62/1978, which regulated this procedure, in order to be entitled to this kind of protection, the situation in question had to concern a fundamental right[441]. The case law of the Tribunal Supremo started very early on granting to aliens this protection and, therefore, agreeing to consider the lawful residence of aliens in the territory as part of the fundamental right to freedom of movement. In order to do this, the Court proceeded to a broad interpretation of the provisions involved. Thus, in spite of the express reference to nationals and implicit exclusion of non-nationals contained in Article 19 of the Constitution on freedom of movement[442], the Court declared this right to apply also to aliens. In the view of the Tribunal Supremo, apart from Article 19, other constitutional provisions had to be taken into account, even if these were less directly relevant, such as Article 13.1 – which confers on aliens all the fundamental rights established in Title I of the Constitution – or Article 10.2 – which expressly refers to the international treaties for the definition of fundamental rights. The decision of the Tribunal Supremo, of 3 November 1981, is paradigmatic in this respect[443], culminating in a whole judicial trend in this sense[444]. As the Court reasoned in this judgment, although the permanence of the alien in the territory can at any time come to an end by the imposition of an expulsion, the enjoyment of this situation constitutes a fundamental right in any case. Thus, the special process of judicial protection foreseen in the Act 62/1978 was open to aliens, the Court referring to different constitutional grounds to support this: the principle of human dignity declared in Article 10.1, the principle of non-discrimination recognised in Article 14, and, lastly, the right to freedom of movement. As indicated above, in order to justify the universal character of this right, the Tribunal Supremo referred to a combination of provisions: Article 19 in conjunction with Article 13.1 of the Constitution and, through Article 96.1 of the Constitution[445], both the ICCPR and the ECHR[446]. This reasoning was confirmed by the subsequent interventions of the Court[447]. In a closer delimitation of this idea, the Court affirmed, in its decision of 10 November 1986[448], that the freedom of movement recognised to aliens implied the right not to suffer restrictions different from the ones specifically established in legislative acts or international treaties. In this way, the Tribunal Supremo confirmed the use of the special guarantee regulated in the Act 62/1978 for the protection of this right. Consequently, the Court declared the administrative order of expulsion illegal, by

claiming that the cause of deportation argued, namely, the unlawful activity of the alien, had not been proved sufficiently[449]. More generally, and although following another line of reasoning, other judicial decisions should be noted here. In a wide sense, these are decisions that develop further the idea of freedom of movement, having thus an impact on the sphere of aliens’ entry and permanence in the territory. Essentially, though, they merely represent a spontaneous application of the constitutional and democratic principles to the novelty of immigration. Nevertheless, they are indicative too of a liberal trend in relation to the entry and permanence controls, even if this trend was not continued later on. Indeed, given the lack of a normative framework and of experience concerning the phenomenon of immigration, the courts tried to mitigate the severity of these administrative prerogatives on aliens[450]. For instance, the decision of 16 November 1982[451], on the concession of working permits, is particularly significant, this constituting a sphere traditionally dominated by the principle of protection of the national labour market. In this case, the Tribunal Supremo went so far as to declare the principle of mobility of the working force, thus proclaiming the need to understand the concession of the working permit as the rule, and its denial as only the exception[452]. Following this reasoning, the decision of 9 February 1988 needs also to be mentioned in which the Tribunal Supremo censured the denial of renewal of a working permit[453]. Rejecting the arguments presented by the administration, the Court denied that the situation of the national market could be altered by the concession of the permit, since the question at issue was the renewal – not the first concession – of the permit[454]. In this sense, and in contrast with the previous case, the idea of permanence underlies the judgment. The latest developments in the case law of the Tribunal Supremo are also significant from this point of view. In a recent decision[455], this Court has ordered the state to pay five months of wages to a North African migrant, an amount which he would have earned had the authorities not unjustly denied him a work permit in 1995, thus preventing him from carrying out seasonal agricultural work in that year. While confirming the discretionary power of the state to decide whether or not to issue the permit, the state may not, under any circumstances, act in an ‘‘arbitrary’’ way such as denying issuance of a work permit without any reason, stressed the Supreme Court[456]. 2. Constitutionalising aliens’ freedom of movement: reinforcement of judicial review concerning entries. The analysis developed above has shown how the limits imposed on the administration have never gone so far, though, as to oblige granting to aliens their entry and permanence into the territory and, therefore, as to recognise the existence of a right of aliens in this respect. In this sense, although the reformulation by the Tribunal Supremo of freedom of movement signified a fundamental step in the construction of aliens’ constitutional status, it did not alter the fundamental basis of this status. Moreover, the precise content and reach of the right remained unclear. In order to understand the evolution of aliens’ status, this section will analyse the further definition by the Tribunal Constitucional of freedom of movement, as a continuation of the case law of the Tribunal Supremo. It will thus examine the final definition and content of the right of aliens to freedom of movement and, in this way, the specific levels achieved by the Spanish case law in the construction of aliens’ constitutional status. Essentially, in this part, an analysis of whether the Constitutional Court has simply confirmed the case law of the Tribunal Supremo on freedom of

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movement – that is, the extension of this right to aliens but without altering the traditional premises on aliens’ entry and permanence into the territory – or whether, instead, the Tribunal Constitucional has taken further this initial construction, to the extent of opening new possibilities of development of aliens’ constitutional status for the future. Constitutional decision 94/1993 is fundamental from this point of view[457]. It represents the confirmation and constitutional framing of the case law developed by the Tribunal Supremo. Fundamentally, it means the insertion of this previous case law in the tripartite classification of fundamental rights, this having been the basis for the construction of aliens’ constitutional status[458]. The introduction of the freedom of movement in this expanding constitutional reasoning is the key contribution of this decision. On that occasion, a constitutional complaint (recurso de amparo) had been presented by an alien, alleging a violation of her fundamental right to freedom of movement by an order of expulsion. In this way, as the prior step before analysing the legality of the expulsion, the Court examined the possibility of considering aliens as holders of this right, thus proceeding to the definition of the right’s precise content. Following the reasoning of the Tribunal Supremo, the Tribunal Constitucional affirmed that the exact wording of Article 19 of the Constitution was not enough to deny this right to aliens. In effect, aliens admitted into the territory were to be considered as holders of the right to freedom of movement. Nevertheless, the Court added that this right does not belong to aliens in the same way as to nationals, as the Tribunal Supremo had also advanced. Different conditions could be thus imposed in each case. Following the scheme defined in its previous decision 107/1984, the Court stated that the right to entry and permanence could not be qualified as inherent in human dignity nor, as a consequence, as belonging to all persons. Therefore, aliens’ freedom of movement only signifies the right of lawful resident aliens to circulate freely inside the territory. In this sense, this right could be limited by orders of expulsion dictated in conformity with the law. After having set out these premises, the Court declared unconstitutional the contested expulsion, by arguing that it had been imposed without taking into account whether the alien affected by it was legitimately on the territory. The order of expulsion had been adopted on the basis of the irregular administrative situation of the alien, omitting however the fact that an application had been presented for the renewal of her residence permit. The Constitutional Court soon confirmed this approach in decision 116/1993[459]. Insisting on the legitimacy of the extension to aliens of the freedom of movement, the Court referred on this occasion to its declaration of 1 July 1992, on the ratification of the Maastricht Treaty. In this, the Court had specified which were the rights belonging exclusively to nationals, limiting its analysis, though, to the status of European nationals. In the final analysis, thus, the decision of 1993 contributed to the delimitation of the rights that are not to be legitimately subordinated to the condition of nationality, and declared the freedom of movement as included among such rights. Though, the case law of the Tribunal Constitucional has also added new elements with respect to the reasoning of the Tribunal Supremo. Indeed, beyond assuming the universality of freedom of movement as the right to freely circulate inside the territory, the incorporation of this right into the general constitutional structure has conferred stronger guarantees on this scheme. Evidence of this is a later intervention of the Tribunal Supremo: the decision of 11 April 1995[460]. The Court did not proceed in this decision with the discussion on the extension to aliens of the right to freedom of

movement. This debate had been in effect already closed in 1993 by the Tribunal Constitucional. The Tribunal Supremo referred instead to the reach of the guarantees and protection ultimately thus conferred on aliens. According to the Tribunal Supremo, the right to freedom of movement grants to aliens the right to demonstrate, before the police agents that are competent for the admission of aliens in the borders, that the conditions required in order to obtain an authorisation of entry have been fulfilled. Consequently, the Court found a violation of Article 19 of the Constitution on the grounds of the immediacy of the order of devolucio´n (the order itself not being thus censured), since the alien had not been given the opportunity to demonstrate the fulfilment of these requirements. In this sense, Article 19 would then cover, not only the possibility for lawful resident aliens to freely circulate inside the national territory, but also, and to a certain extent, the position of aliens outside the territory who were attempting to enter the country. From this perspective, although freedom of movement, as understood by the Spanish courts, in no way confers on aliens a right of entrance, it nevertheless gives a right to judicial control of the administrative rejections of the permit at issue – that is to say, a right in the form of a procedural guarantee. The specific reach of this control is defined according to the possibilities of entrance foreseen in the law[461]. Therefore, by assuring a certain degree of judicial review, the further delimitation of the content of freedom of movement has reinforced the guarantees of aliens’ entry and permanence. Moreover, through the incorporation of this freedom into the general scheme of aliens’ constitutional status, the Tribunal Constitucional has consolidated the expanding potentiality inherent in this scheme and, more generally, in the Spanish constitutional system. Indeed, the modulating function of Article 13.1, together with Article 10.2, have made it possible to overcome the rigidity of provisions such as Article 19. Even if the Court has not reformulated the freedom of movement so as to include a right to entry, it has consolidated mechanisms such as this one, which may allow for a further expansion of aliens’ rights in the future. In any case, the levels of protection observed in other countries have not been reached in Spain yet. Clearly, the constitutional mechanisms for the protection of fundamental rights have been crucial for the construction of aliens’ constitutional status, but not strong enough to impulse the degree of development achieved in those other states[462]. The novelty in Spain of the phenomenon of immigration has ultimately proved more determinant from this perspective.

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4. Comparing judicial activism in the field of immigration A. The confirmation of precariousness: precarious rights I. The formulation of the premise of precariousness: forthright denial of the right to entry and permanence After having examined separately the processes of construction of the status of aliens in each of the countries that are the object of this study, the aim of this chapter is to evidence briefly the common features and differences observed. While often a convergence in the results may be verified – the legal orders tending finally towards the same kind of material responses – the processes followed until the achievement of those judicial outcomes are distinct. As will be reasoned later on in this research, the disparities that exist between these processes can be interpreted as the result of the different legal general structures as well as, ultimately, of the different experiences and attitudes vis-a`-vis the immigration phenomenon. However, a thorough analysis of the causes of such differences and similarities will not be carried out here, but at a later stage of this study[463], the aim of this chapter being exclusively to outline the fundamental features – common or distinct – in the specific protection finally conferred on aliens. Therefore, the type of responses given by the national courts will be presented here, in order to see whether these answers are of greater or lesser intensity in each national case. The different ways designed by the courts to achieve that common result are instead merely indicated in this chapter. In accordance with the scheme followed throughout this study, the formulation by the courts of the premise of precariousness will be presented first. As verified in the three national cases, the courts have fully subscribed to this premise which is proclaimed by the respective legal systems, leaving no doubt as to its full validity. This notwithstanding, the declaration of this premise in Germany appears as particularly clear compared to the cases of France and Spain. Apart from denying the existence of the right of aliens to entry and permanent stay, as has occurred before the French and the Spanish courts, the early case law of the German courts seemed to insist especially on the fact that Germany could not be in any event considered a country of immigration. In this sense, German authorisation of entry and permanence of aliens can only be of a discretionary character. The fundamental ‘‘Arab’’ decision of 1973 represented the consecration of this principle[464], the Federal Constitutional Court having started its reasoning on that occasion by affirming that the state was entirely free to concede the permit to aliens or decline to do so. Many early decisions of the Federal Administrative Court are even clearer in this respect, going so far as to affirm this principle vis-a`-vis German nationals married to aliens who were the object of orders of expulsion. As was declared in the decision of 27 February 1962[465], the interest of the national partner could not prevail over the execution of the expulsion since, in the view of the Court, the German national could still choose between staying in the country – thus giving up his or her marriage – and following the foreign partner to his or her country of origin in order to continue their life together there. Although this case law was subsequently modified by the very same Court[466], it is nevertheless illustrative of the vehemence with which this principle was assumed in Germany.

As with the German Federal Constitutional Court, the French Conseil Constitutionnel has proceeded to an explicit and forthright denial of the right of aliens to entry and residence[467]. However, in the case of France, this declaration is secondary with respect to the type of interventions by the Conseil d’E´tat and actually only culminates in a judicial reasoning that was already consolidated in practice. The denial of this right had been implicitly affirmed by the Conseil d’E´tat, which, in its first interventions in the sphere of immigration, simply rejected a substantive control of the conferral of these permits by the administration. The wide administrative margin of action, which is implied in the classification of this conferral as a discretionary prerogative, was reinforced by the abstention of the Conseil d’E´tat in this area. Indeed, the Court refused initially to interfere with the legal qualification given by the administration to the facts surrounding the conferral of such permits. Less explicit is also the affirmation of this premise in the case of Spain. Yet, with respect to France, the way in which the implicit assumption of this principle is manifested is again completely different. Whereas in France, the material action of the Conseil d’E´tat is what ultimately conveys this principle, it does not seem possible to draw such a conclusion from the action of the Spanish administrative jurisdiction. There is in Spain no equivalent to the situation that results in France from the coexistence of the Conseil Constitutionnel and the Conseil d’E´tat, the statements of the Conseil Constitutionnel being secondary with respect to the impact of the control exercised by the Conseil d’E´tat[468]. Although the Spanish courts assume in their reasoning the denial of the right of aliens to entry and permanence, there simply seem to be less occasions on which the Spanish courts have directly expressed their view on this question. As indicated in the chapter on Spain, this fact can perhaps be explained by the only recent arrival of the phenomenon of immigration to Spain or, even, by the deliberate avoidance of this kind of restrictive discourse by Spanish public authorities. II. The confirmation of precariousness in the abstract analysis: legitimisation of the state mechanisms to keep unwanted aliens away from the territory Inherent in the acceptance by the courts of the right of the states to define their immigration policy is the legitimisation of the type of mechanisms that the states have defined for that purpose. In their judicial corroboration of this premise, the courts proceed to the abstract instrumentalisation of this idea, necessarily thus departing in their reasoning from the different legal or administrative mechanisms foreseen in each national order. Thus, the kind of interventions performed by the courts are to be interpreted in light of these existing mechanisms. For instance, in the case of Germany, the reasoning followed by the courts seems to adopt a general and abstract perspective since the key legal element then in force, giving shape to the idea of precariousness, was the general clause of the 1965 Aliens Act. Although the Federal Constitutional Court actually departed from the concrete hypotheses before it (expulsion of aliens), the Court was ultimately confronted with the constitutionality of this clause, having thus to express its view on it[469]. As already analysed in the chapter on Germany, the clause contained in Article 2 of the Act signified the conferral of vast prerogatives on the administration: entrance, permanence and (albeit to a lesser degree) deportations, became dependent on the notion of the general interests of the German Federal Republic. Since the law did not foresee any further criteria, the delimitation of the specific content of such a notion was thus left entirely to the administration. The significant aspect of the intervention by the Court was in effect the fact that the Court accepted the generality and vagueness of the

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law. Although the lack of specific criteria in the law signified subordinating practically entirely the organisation of immigration law to the administrative power, the Court did not object directly to the clause. Instead, the type of decisions analysed in the cases of the French and the Spanish courts focused on more concrete questions. Although the mechanisms set up by the respective states in order to grant their discretionary power vis-a`-vis aliens were not weaker than the German ones in their actual impact, they were, however, not as wide as the ones existing in Germany at the time of these interventions by the Federal Constitutional Court. The clause foreseen in the German Aliens Act practically signified transferring immigration law to the sphere of administrative discretionary prerogatives. Instead, the mechanisms set up in France and Spain referred mainly to the material means to keep unwanted aliens away from the national territory. In this sense, the reasoning followed by the courts in these two countries concentrated on the analysis of the rights and general principles that were affected by such measures. The perspective adopted by the courts on these occasions is however also abstract, as in the case of Germany, since they are asked to verify the legitimacy of those legal mechanisms. In the case of France, the reasoning followed by the Conseil Constitutionnel when evaluating the constitutionality of expulsions and, generally, of the measures to remove aliens from the territory, has concentrated on their impact on the right of aliens to personal liberty. In essence, the Conseil has declared this type of measure compatible with the definition given to the fundamental right to personal liberty. As the Conseil reasoned, these are mechanisms that can only be admitted in the case of aliens[470]. In Spain, the reasoning followed by the courts was also restricted to the question of the material means to keep aliens away from the territory. Specifically, the Tribunal Constitucional was confronted with the possible unconstitutionality of the Aliens Act of 1985 in relation to the internment of aliens in procedures of expulsions[471]. By accepting in those cases the use of measures implying deprivation of liberty, and by legitimising the ambiguity of the law, which seemed to confer on the administration a preponderant role in the internment of aliens, the Court reinforced the administrative power vis-a`-vis aliens. III. The realisation of precariousness in judicial practice: reluctance to delimit the general clauses Once the conformity of the state mechanisms to control immigration has been declared with respect to abstract constitutional and general parameters, the courts are confronted with the material implementation of such mechanisms. Through this new judicial confirmation of their validity, what has been defined here as the premise of precariousness adopts in practice concrete forms and meaning. In this sense, apart from legitimising the creation of legal mechanisms in order to grant the right of states to refuse unwanted aliens, the judicial implementation of such mechanisms represents the definition of the precise features and ultimate reach of this fundamental premise. Specifically, it identifies which material circumstances, as well as to what extent, the administration is in practice legitimised to keep aliens away from the territory. It is the acceptance of a very wide range of circumstances – and, therefore, the refusal to delimit more restrictively the situations in which the administration can make use of these prerogatives, which ultimately represents the idea of precariousness. In other words, although the implementation of the general norms should, as such, imply the delimitation of its content, the analysis of the case law shows that the courts

maintained the vagueness and generality of the legal formulas, and thus reinforced the prerogatives retained by the administration. It is indeed the acceptance of an unrestricted use of such prerogatives which has consolidated the idea of precariousness – that is, the ultimate dependence of aliens on the discretionary will of the administration. A similar degree of flexibility seems to be finally conferred on the administration by the reasoning of the courts in the three countries studied here. In all of them, the courts legitimised a vast variety of administrative arguments in relation to immigration, not requiring, moreover, strict proof for these arguments when advanced by the administration. For instance, in the case of Germany, the courts accepted a very wide range of reasons when controlling the administrative implementation of the notion of ‘‘general interests of the German Federal Republic’’ in order to justify the denial of permits or orders of expulsion. For example, the non-fulfilment of the visa obligation was confirmed by the courts as contradicting the general interests and, thus, justifying the expulsion of the alien[472]. Likewise, in the case of the commission of crimes by aliens, the courts also accepted expulsions on the grounds of arguments of general and special prevention, despite the criticism raised by legal scholars, who argued that the objectives of special and general prevention fall under criminal – and not administrative – law[473]. Finally, the German courts have legitimised the denial of permits to aliens by referring to arguments only indirectly connected with the aim of preservation of the general interests, such as the country’s economic situation[474]. Similar consequences derive from the acceptance by the French administrative courts of the arguments presented by the administration in relation to the notion of public order. The existence of a threat to public order is what justifies in French law the imposition of orders of expulsion, the kind of arguments accepted by the courts in these cases being indeed very varied as well. They range from the violation by the alien of the obligation of political neutrality[475], to the possession of false documents[476], or to the commission of theft and crimes of violence[477]. Nevertheless, in contrast to the German case, the arguments presented to justify the expulsion of aliens seem to have focused to a large extent on the commission of crimes despite the fact that the Conseil d’E´tat rejected the automatic connection between the existence of a criminal conviction and the imposition of a deportation order. In the case of Spain, the courts also ended up legitimising a very broad use of the notion of public order vis-a`-vis aliens. For instance, when analysing the possibility of suspension of administrative acts of expulsion, the courts accepted extremely vague arguments as indicative of the real existence of a danger for public order. As in the case of Germany, the courts included under this notion a very diversified type of reasoning. Examples of this are the legitimisation by the courts of arguments such as the harm that the continuation of illegal situations could signify for the labour market, the legal uncertainty that the suspension of general norms such as the Aliens Act could generate or, even, the harm related to aliens’ begging[478]. Furthermore, the prevalence of public order in the sphere of immigration seems to be sometimes greater in Spain than in other countries. Although decision 13/2001 of the Tribunal Constitucional was not directly related to the mechanisms of expulsion, this decision is paradigmatic in this respect. On that occasion, the Court went so far as to explicitly allow for the use of racial criteria by the police in the control of immigrants, the preservation of public order being the ultimate aim pursued[479]. Despite the serious criticism raised in the legal literature concerning this decision, and the

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divergence this judgment constituted with respect to the reasoning followed in similar situations by other European courts such as the Conseil Constitutionnel [480], the Tribunal Constitucional argued on that occasion that the use of such a criterion by the police did not constitute racial discrimination. B. The emergence of a constitutional status: emergent rights I. The introduction of procedural limits to precariousness: the extension to aliens of guarantees Although the courts have not ceased to reiterate the sovereignty of states in relation to the question of the acceptance of immigrants, when confronted with practical situations in which protection of aliens appeared fundamental, the responses given in those cases have often led to results that actually nuance the effectiveness of that premise. In the final analysis, the introduction by the courts of new elements of consideration in their intervention is prompted by the severity of the consequences inherent in the implementation of the said premise. Ultimately, the courts are urged to correct these consequences when the situation that results becomes incompatible with the constitutional and general principles proclaimed in the respective countries. Specifically, these effects are particularly evident in cases of aliens who are already settled in the territory and who are forced to leave regardless of the ties that have been established in the host-country. In this sense, the principle of proportionality has played a fundamental role in the initial conferral of protection on aliens, by making it possible to start reducing the impact of deportation orders. In brief, it is a principle that articulates the need to consider the interests of the alien while at the same time assuring the right of the state to control immigration. The determinant role of this principle is indeed very clear in the case of Germany. In the famous ‘‘Arab’’ decision, concerning the immediate execution of an order of expulsion, the Federal Constitutional Court required the administration to provide proof of the real existence of the need to protect the national interest as well as its prevalence over the interests of the alien who was to be expelled. As the Court affirmed on that occasion, the interests of the person have to be especially considered in cases of immediate execution, since the harm caused to the person can be irreparable, as against the merely preventive nature of this type of execution. A similar state of affairs with regard to this principle may be observed in France, where the idea of proportionality also offered the background and means to start limiting the administrative prerogatives in relation to deportation orders. As the Conseil Constitutionnel affirmed repeatedly, the notion of public order can only be used to impose orders of expulsion in extreme cases, the reality of the extremity to be demonstrated by the state[481]. Likewise, in relation to the immediate execution of expulsions and the principle of proportionality, the possibility of judicial suspension represented a key element in the initial conferral of a protection on aliens. This mechanism of interim relief offered to aliens a first means of immediate and preventive reaction against the administrative prerogatives to remove them from the territory. In the final analysis, it represents the instrument to give effect to the principle of proportionality before the consequences of the administrative action become unchangeable. In Germany, France and Spain, this principle has been crucial in the shaping of immigration law. Again, in the case of Germany, in further development of the reasoning on proportionality, the Federal Constitutional Court ordered the stay of the

expulsion. As the Court reasoned, the mere suspicion, advanced by the administration, of the alien’s involvement in the terrorist attacks during the Munich Olympic Games was not enough to legitimately proceed to the immediate execution of the order. The judicial suspension of administrative acts also proved determinant in French law, representing the sphere in which an essential part of the status of aliens has been developed. It was in the decision of 23 July 1974 that the Conseil d’E´tat incorporated the possibility of suspension into acts concerning of aliens[482]. In Spain, although the courts proved initially very reluctant to permit the material suspension of administrative acts concerning immigration issues, this resistance was later overcome by these courts. More importantly, however, the declaration by the Tribunal Constitucional of the unconstitutionality of Article 34 of the Aliens Act of 1985 signified the affirmation, vis-a`-vis the legislator, of the universal character of the right to due process. In this decision, aliens were explicitly declared holders of this right, thereby allowing for the possibility of judicial suspension of administrative acts also in the sphere of immigration, which was the issue discussed in this decision[483]. II. The consolidation of substantive limits to precariousness: the recognition of fundamental rights According to the previous analysis, the courts limited progressively the exceptionality that had traditionally characterised the sphere of immigration, by simply asserting the general principles which regulate the action of the administration. The progressive implementation of these principles led however to a further stage in the construction of immigration law, which is common again to all the countries considered in this study. It prompted the recognition of real rights, this representing for aliens the enjoyment of a new status in the face of the public authorities. Besides being constrained by the general principles that regulate their activity, the public authorities were thus also conditioned by the existence of a series of fundamental rights or, even, of a global constitutional status, the existence of which is to a certain extent antecedent to and independent of administrative prerogatives. That said, however, the traditional understanding of immigration law remains unaltered: the entrance and the permanence of aliens into the national territory is still defined as depending on the ‘‘gracious concession’’ of the state. Yet, the emergence of a constitutional status does nuance this basic premise. The existence of such a status necessarily imposes on public authorities a new way of reasoning. From this perspective, the protection conferred on aliens against administrative measures of deportation, beyond finding expression in specific constitutional or legal principles, assumes the form of fundamental rights. In the case of Germany, the Federal Constitutional Court extended to aliens rights such as due process or, even, to a certain extent, freedom of movement, on the basis of the general protection of freedom of action. Concerning freedom of movement, although the Court denied that a right of aliens to entry and to permanent stay would exist, it affirmed that the aliens who were already in the territory were however entitled to some protection[484]. Though, the right to family protection, recognised in Article 6 BL, is what proved to be the ultimate determinant in the judicial construction of a constitutional status for aliens. Specifically, it offered to the aliens married to German nationals the fundamental means to oppose deportation orders. As the Federal Constitutional Court stated in its decision of 1 March 1966, the right to constitutional protection to which the German partner is in any event entitled, obliges the administration to balance the different interests affected by the decision[485].

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The right to family protection also represented in France a fundamental mechanism for aliens to oppose expulsions, since the Conseil d’E´tat accepted considering the family and personal situation of aliens when reviewing the legal qualification of the facts by the administration[486]. Likewise, in France, the proclamation by the Conseil Constitutionnel of the universality of the right to personal freedom also signified granting aliens greater protection vis-a`-vis the administration. It represented the introduction of additional guarantees in the execution of deportation orders. Since the juge judiciaire is the competent authority for the protection against arbitrary deprivations of liberty, this judge has to intervene in order to grant the respect of this right during the detention of aliens prior to deportation[487]. In Spain, it is also the right to personal freedom, in combination with the right to due process, which allowed for the development of further guarantees that protect the aliens who are the object of orders of expulsion. In a series of decisions concerning the conferral of habeas corpus, the Tribunal Constitucional elaborated a more precise content of these two rights. As also stated by the Conseil Constitutionnel, the Tribunal Constitucional declared that the intervention by the judiciary in the sphere of habeas corpus assures that no arbitrary deprivation of liberty is committed, as well as effective means of defence vis-a`-vis the administration[488]. In the final analysis, the relevance and ultimate impact of the introduction of aliens in the sphere of fundamental rights is expressed by the intervention of the Tribunal Constitucional in its celebrated decision 115/1987[489]. Although this decision did not refer to deportation orders, the definition given to the rights to assembly and association proved fundamental as a way to set general limits for public authorities such as, in that case, the legislator. Beyond the specific content conferred on these rights and their relevance for the entry and the residence of aliens, the determinant aspect of the intervention of the Tribunal Constitucional was the fact that the Court defined the real impact and strength of fundamental rights: aliens then enjoy the general guarantees inherent in constitutional rights. III. Questioning the premise of precariousness: the emergence of a right to entry and to permanence As verified in the three countries analysed in this study, the principles set by the courts in the sphere of immigration led finally to results that go beyond the establishing of limits for the action of public authorities. The implementation of the constitutional criteria led sometimes to the emergence of positive obligations for the administration. In this way, aliens, besides being entitled to oppose certain administrative orders such as expulsions, could moreover demand from the state the performance of certain acts. In some cases, the protection thus conferred undermined the fundamental premise on which the whole reception of immigration is based: that is, the denial of the existence of a right of aliens to entry and to permanent stay. This notwithstanding, whereas in the three countries the trend imposed by the judiciary is oriented in this direction, the same level of protection has not always been reached – that is, the de facto recognition of a right to entry and permanence. While this has been the case in France and Germany, the intervention by the courts in Spain has not got that far. Although the Spanish courts have extended freedom of movement to aliens despite the express reserve of this right to nationals by Article 19 of the Constitution, the definition given by the courts to this right does not contemplate the possibility of entry and permanence but merely the right of the aliens lawfully residing

in the territory to circulate within the internal boarders. However, the extension to aliens of this type of freedom has had very important practical consequences. On the one hand, it has signified the access of aliens to the judicial mechanism of protection of fundamental rights foreseen in the Act 62/1978[490]. On the other, once the right to freedom of movement was included by the Tribunal Constitucional in its tripartite classification of fundamental rights[491], it represented the conferral on aliens of greater judicial guarantees in relation to their entry and their deportation[492]. In any case, despite the importance of these practical consequences, the reformulation by the courts of Article 19 did not entitle aliens to claim vis-a`-vis the state the possibility of entry or permanence as it had occurred – through different procedures – in Germany or France. The achievement of such results was indirect both in Germany and France. In Germany, the constitutional principle of reliance (Vertrauensschutz) led the Federal Constitutional Court to recognise the right to the renewal of the permanence permit[493]. According to the Court, the prior routine renewals had created a constitutionally protected reliance interest in continued residence that could not be affected by the change of the government’s official position on immigration policy. A similar conclusion was reached by the Conseil Constitutionnel when analysing the requirements for the renewal of the residence permit. In decision 97-389, the Conseil gave precedence for the first time to the right to lead a normal family life, in combination with the right to private life, over public order. As the Conseil reasoned, the aim of preserving public order cannot suppress the right to permanence of a person who has been lawfully residing for over ten years in the territory and who, as a result, has developed strong ties within French society[494]. In this sense, very similar criteria led ultimately in both countries to the recognition of a quasi-unconditional right to the renewal of the residence permit and thus, albeit indirectly, to a right of permanence. Likewise, common features are also to be found between these countries in the recognition of a right to entry. To a large extent, the recognition of this right has taken place in both countries through family protection. Indeed, the fundamental relevance acquired by the question of family reunification after the immigration stop of 1973 put forward a whole new series of issues concerning the reception of immigrants and altering profoundly the approach to aliens. Ultimately, the discussion surrounding family reunification in both Germany and France went so far as to affect the very premise on which the whole construction of alien law is based: that is, the fundamental premise of the non-existence of a right of aliens to entry. In the case of Germany, the decision of the Federal Constitutional Court, of 12 May 1987, represented a fundamental step forward in the construction of a constitutional status for aliens. The Court, by accepting to grant protection to all members of the family – even to those who are still outside of the territory – materially conferred a right of entry[495]. Similarly, in France, the proclamation by the Conseil d’E´tat of the right to lead a normal family life imposed on the government the obligation to assure the entry to the family members of those aliens who had been admitted to and who resided lawfully in the host country[496].

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PART TWO

Assessing the judicial process of extension of protection to aliens

5. Supranational mechanisms of protection of fundamental rights After examining the processes of construction of aliens’ status in the legal orders of Germany, France and Spain, now an attempt will be made to evaluate the conclusions obtained. That is, the duality of precarious versus emergent rights as well as its distinct manifestation in each country. In this sense, the analysis envisaged in the second part of this research consists, ultimately, of a deconstruction of the preceding study or, in other words, the determination of the causes of the emergence of a protection for aliens. In order to do this, three different factors will be presented throughout the following chapters, as supposedly determinant of the conferral of this protection. These are, respectively, supranational law as interpreted by the competent jurisdictions (chapter 5); the internal legal mechanisms foreseen in each country for the safeguard of the rights of the person (chapter 6); and, lastly, the characteristics inherent in the judicial function, which acquire a particular relevance in situations of lack of precise normative criteria, as in the case of immigration (chapter 7). This chapter initiates this wider analysis by focusing on the impact of supranational case law on the construction of a status for aliens. It intends to see whether this case law can be considered as a determinant factor of the emergence of aliens’ fundamental rights. Although this emergence has been presented as taking place at the national level, this chapter will nonetheless try to examine whether the principles set by the supranational jurisdictions may have influenced the reasoning of the national courts. If this is the case, the existence of a supranational case law on immigration could also then account for the convergence observed in the responses offered by the national courts. In order to proceed to this analysis, the case law of two fundamental courts will be presented here – the European Court of Human Rights (hereinafter ECtHR) and the European Court of Justice (hereinafter ECJ) – both of them created to assure the respect of supranational systems and, although on completely different bases, with direct impact on the national orders. The analysis of their fundamental jurisprudential trends in the sphere of immigration will try to show whether these courts actually reproduce the line of thought followed by the national jurisdictions in this field or whether, instead, they give place to new principles which are later imposed at the national level[497]. A thorough analysis of this question would require examination of the material reception by the national courts of these principles which will not be carried out here but in the following chapter, in which a study will be undertaken in order to detect, in light of the internal legal mechanisms, evidence of an explicit impact of these supranational and jurisprudential trends in the reasoning of the national courts. This chapter will be instead exclusively focused on the ECtHR and the ECJ, in order to merely define the main features of their reasoning and to see, thus, whether this alone can help to explain the emergence of a body of rights for aliens.

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A. Precarious rights: the non-interference with the states I. The formulation of the premise of precariousness 1. The confirmation of the general principle by the ECtHR: the sovereignty of the states. The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR), which was signed in 1950 by the Council of Europe contracting states, confers on the ECtHR the task of ensuring respect for the rights declared in the Convention. The Council of Europe did not intend however to set an exhaustive and detailed catalogue of rights but simply the minimal standards that would impede violations of fundamental rights such as the ones committed during the Second World War. Indeed, by removing from the states the ultimate control over the rights that are most essential for the protection of the person, and conferring it thus on a supranational court, it was expected that the principle of national sovereignty could never again be invoked to preclude the punishment of human rights violations. Therefore, the extraordinary aspect of this text is the creation of a supranational organism to ensure respect for its provisions by states. To a certain extent, this compensates for the rather limited number and type of rights contained in it: classical liberties or rights that are traditionally considered as directly relevant for the respect of human dignity, any substantial reference to social protection having been omitted. The Council of Europe seemed to wish to avoid any controversial interference with the states’ sovereignty, granting however an efficient system of protection in the sphere of rights where a general consensus existed already. By the same token, no express reference to aliens exists in the text of the Convention, except for Article 14 on the prohibition of discrimination, which includes national origin[498], and Article 16, which in turn establishes an exception to that interdiction for the specific field of political rights[499]. Only later, with the drafting of additional Protocols, was the protection of aliens addressed directly. Specifically, Protocol No. 4 (of 1963) recognises in Article 2 the right to liberty of movement to every person lawfully residing in the territory of a state[500], and moreover prohibits, in Article 4, collective expulsions[501]. Likewise, Protocol No. 7 (1984) declares, in Article 1.2, that aliens can only be expelled from the territory of a state in pursuance of a decision reached in accordance with law, having then the right to appeal against that decision[502]. However, an exceptional and revolutionary feature of the Convention is the effect of territoriality conferred by its first Article, which signifies that the states parties are obliged to secure the rights defined in the Convention to all persons within their jurisdiction, irrespective therefore of their nationality and, even, of the lawfulness of their residence[503]. In any case, the text does not recognise an aliens’ right not to be removed from the territory of the states. Moreover, not wanting to overlap with the 1951 Geneva Convention on the legal status of refugees, the drafters of the ECHR expressly refused to include a right of asylum. The expansive interpretation by the ECtHR, though, has ended up including such protection in the Convention[504]. This notwithstanding, according to the interpretation of the text by the ECtHR, the states are sovereign to control immigration flows. From this perspective, the ECtHR has fully subscribed to the main premise analysed at the national level, by firmly denying the existence of a right of aliens to entry and permanence into the territory. Examples of this kind of statement of principle are to be found in practically all the Court’s decisions on aliens. For instance, in the 1985 case (Abdulaziz and others), which represents one of the first occasions on which the Court was confronted with the

phenomenon of immigration and, specifically, with the set of problems concerning family reunion, the ECtHR reiterated this premise: the precedence of the right of the state to control the entry and permanence of aliens over the right of the persons to choose the place in which to establish their family life[505]. Likewise, in relation to the right not to suffer any inhuman or degrading treatment and the need to preserve public security, the Court, in the 1996 Chahal case, insisted on the right of the state to control its borders[506]. The Court seemed to interpret the lack of recognition by the Convention of a right of asylum as reinforcing this argument, even if it ended up conferring protection on the applicant. Other situations in which the Court has recognised the right of the states to control immigration flows are for instance the following: the 1997 case (D v. The United Kingdom), concerning the right of an AIDS patient to continue to benefit from the medical treatment received in the UK[507], or the 1997 El Boujaı¨di case, in relation to the commission of criminal offences by aliens[508]. 2. The confirmation of the general principle by the ECJ: the exclusive competence of the Member States. As with the ECtHR, the ECJ represents an example of supranational judicial control. The transfer of national competence to a supranational organism was also conceived here as the only way to secure the aims pursued with the foundation of a new legal system – the European Communities in this case. Indeed, in contrast to the ECtHR, its objective is not to protect the fundamental rights of the person but to ensure the realisation of a more specific aim, which is the internal market among the Member States of the European Communities. Community legislation differentiates itself from general instruments of public international law. The nature and characteristics of the process of integration has led the ECJ to a systematic and teleological interpretation of European law in a way that this achieves direct effect and absolute precedence over national law. In this sense, although the competence of the ECJ is in principle defined according to this aim, the material pursuance of such an objective has prompted the Court to expand increasingly its field of intervention. According to these objectives, third-country nationals fall outside the scope of action of the EC. The reasoning is in effect the opposite of the one consecrated in the European Convention: only the nationals of the Member States are protected by the rights conferred by the EC Treaty, only they being contemplated by the EC Treaty. In this sense, although EC law was from the very beginning concerned with immigration, this was in principle only so as regards the Member States’ nationals who were exercising Community freedoms. Only later, with the introduction of the idea of a European citizenship by the 1992 Maastricht Treaty, did the rights of the Member States’ nationals begin to achieve autonomy from the strictly economic approach. Likewise, third-country nationals have been included progressively under the scope of the EC, inasmuch as they contribute (albeit indirectly) to the realisation of Community objectives. Nevertheless, this expansion of the EC met with very strong opposition by the states that did not want to give up competence in matters intrinsically related to national sovereignty, such as control over borders. In this sense, although the EC became de facto increasingly involved in issues concerning third-country nationals, the regulation of these questions was kept outside the institutional procedures foreseen by EC law. The negotiations maintained by the states were thus held at a merely intergovernmental level, the states avoiding in this way the otherwise existing institutional control over their decisions, as well as the direct effect and the primacy inherent in Community legislation[509].

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Although this has evolved, the Amsterdam Treaty having signified a fundamental communitarisation of this sphere, this process is still merely at its initial phase[510]. Illustrative of this is the still minimal competence of the ECJ in matters related to thirdcountry nationals, despite the communitarisation of this sphere, the Court only being able to intervene in an indirect manner[511]. Thus, from the perspective of this study, the relevance of its case law is then limited. Nevertheless, an analysis of the reasoning followed by this Court in relation to third-country nationals will be carried out here, in order to observe the possibilities and degree of impact of the Court through its indirect and instrumentalist approach. Indeed, even if the jurisdiction of the ECJ has progressively expanded, the Court having increasingly limited the competence of the states on these issues, the reforms undertaken have not completely challenged the premise on which the construction of the EU immigration policy was based: the exclusive competence of the Member States concerning third-country nationals. As opposed to the activism of the ECJ in other areas, the Court has been reluctant to question openly this principle. Especially expressive in this respect are the first interventions of the ECJ in this sphere, such as the decision of 9 July 1987[512]. This ruling illustrates the tension existing among the states and the Community institutions – in this case, the Commission – when attempting to define a common immigration policy regarding third-country nationals. On this occasion, the Commission tried to set a consultation procedure whereby the Member States would be required to notify it of proposals for amendments to their immigration laws. The Commission defended the legitimacy of this initiative by arguing that the EC Treaty conferred on it competence in the sphere of social protection. The reaction of the Member States against Commission Decision 85/ 381 was immediate: they challenged its legitimacy before the ECJ. Although the Court admitted that the question did fall partially within the sphere of competence of the Commission, it nevertheless declared the Decision invalid by arguing that it went beyond the scope of such sphere and that the Commission was in any event not entitled to impose an obligation of result as the Decision did, but merely of procedure[513]. In this way, although the ECJ partially legitimised the initiative, it confirmed the principle of exclusive competence of the States[514]. Ultimately, this signified the ratification by the Court of the traditional premise on which immigration policy is built: the definition of aliens’ entrance and permanence into the territory as an act of sovereignty of the states exclusively. II. The confirmation of precariousness in the abstract analysis 1. The legitimisation by the ECtHR of the removal of aliens: the relative protection of Article 8 ECHR. The sphere of family life has offered the ECtHR a fundamental framework for the development of its reasoning concerning aliens[515]. The case law subsequent to the Abdulaziz and others case in effect defines the consequences of the principle established therein: the legitimacy of expulsions or refusals of entries and permanence in order to grant the right of the state to control the immigration flows. In relation to deportations, the Court has reiterated this idea throughout its case law on aliens having committed criminal offences. In the view of the Court, both the right and the duty of the state to preserve law and order prevails over the right of the alien to remain in the country where family and social ties have been built, and thus legitimises the expulsion of the alien. Examples of this are to be found in relation to deportations ordered in response to the commission of crimes, the Court confirming the legitimacy of

the state’s reaction. These are, for instance, the cases of Bouchelkia[516], El Boujaı¨di[517], or Boujlifa[518], handed down in 1997, or the case of Dalia of 1998[519]. Similarly, the Court has also legitimised the denial of entry permits to minors who intended to join their parents in the host country, by simply arguing that the state is free to concede the authorisation or decline to do so according to its discretionary prerogatives. This is for instance to be seen in cases such as Gu¨l[520], or Ahmut[521]. Essentially, the general criterion implemented by the Court in those cases is not so much whether the existence of a right to family life confers the right to reside in the country where the alien’s family has settled, but rather the question of whether the continuation of that family life is possible in the country of origin, giving thus priority to the right of the state to organise the immigration flows in its own territory. Indeed, as consolidated throughout the case law of the Court, Article 8 of the Convention by no means confers an absolute protection against expulsions. Furthermore, this reasoning has led the Court to legitimise measures of expulsion – or of denial of entry and permanence – also in cases where the material situation of the alien affected was very similar to the one of nationals. This is for instance the case of expulsions imposed on second-generation immigrants, who have practically no ties with the country of origin, as a result of offences committed and in addition sometimes to a prison sentence. This controversy arises in some of the decisions referred to above, such as Bouchelkia, El Boujaı¨di and Boujlifa. On those occasions, the Court seemed to deliberately avoid the particular set of problems characterising their situation – that is, their condition as second-generation migrants – and argued simply that in light of the specific circumstances the deportations did not appear discriminatory, constituting moreover a legitimate and non-disproportionate measure. As the Court stated[522], aliens are placed in a situation different from the one enjoyed by both the nationals of the host country and the nationals of the Member States of the European Union, which are part of a specific legal order[523]. This question arises even more clearly in the case of Ahmut v. The Netherlands, in relation, however, to a different situation: the entry requested by an alien minor in order to join his father in The Netherlands. The Court confirmed the refusal by the Dutch government, despite the young age of the child and, more importantly, although the father had acquired Dutch nationality after many years of lawful residence. As the dissenting opinions pointed out, beyond the severity of this decision, the ultimate questionable aspect is its impact on the notion and content of citizenship, since the decision denied to a naturalised alien basic rights such as the possibility to be joined by his children. While the determinant element could have been the nationality of the applicant, the Court insisted instead on the fact that the separation between the father and the son was due to the father’s voluntary emigration from Morocco to Holland, a life together back in the country of origin being thus possible[524]. Ultimately, the decision consecrated a fundamental distinction between nationals and naturalised aliens which, from the perspective of Article 14 on nondiscrimination, appears even more questionable than the expulsions of secondgeneration immigrants. [525] 2. The legitimisation by the ECJ of the removal of third-country nationals: the lack of competence to implement Article 8 ECHR. According to Community law, if a national of a Member State is entitled to exercise a free movement right, the Member State may only seek to exclude or expel him or her where it can justify the decision on the basis of public policy, public security or public health. The individual’s right of movement

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takes therefore precedence over the state’s power to control access and residence on the territory[526]. This is in effect not the case of third-country nationals, who are not granted this protection by European law. The ECJ has confirmed this restrictive interpretation of the law and has therefore refused to control expulsion measures concerning third-country nationals. An example of this is the Demirel decision, concerning an appeal against an order to leave the country issued by the German city of Schwa¨bisch Gmu¨nd against Ms Meryem Demirel, the wife of a Turkish national who had been lawfully living and working in Germany since 1979[527]. Ms Demirel did not come under the conditions of German law for family reunification which were tightened in 1982 and 1984 and which raised from three to eight years the period which a migrant in the situation of Mr Demirel had to live and work in order to be joined by his family. The question brought before the Court by the Administrative Court in Stuttgart was whether the Turkey EC Association Agreement created a standstill provision, which individuals could directly invoke, whereby under Community law Germany could not tighten the conditions for movement. Through this decision, the ECJ expanded its jurisdiction: it affirmed its competence to rule on the interpretation of a provision in an Association Agreement – a Mixed Agreement – dealing with Turkish migrant workers, containing a commitment which only Member States could enter into in the sphere of their own powers. This was the case of the provisions on freedom of movement for workers. Against the governments of Great Britain and Germany, the Court reasoned that the Agreement created ‘‘special and privileged links with a non-Member country which must, at least to a certain extent, take part in the Community system’’ and, thus, ‘‘must necessarily empower the Community to guarantee commitments towards non-Member countries in all the fields covered by the EC Treaty’’[528]. Following this argumentation, the Court then addressed the question on the effective protection recognised in the Agreement and held that, given the nature of its provisions, none of them were directly applicable, since they essentially served to set out a programme and were not sufficiently precise and unconditional to be capable of governing directly the movement of workers[529]. The consequences of this reasoning were clear: the Court refused to control the expulsion issued against Ms. Demirel, by arguing that given the non-directly applicable character of the provisions, the matter fell outside the scope of Community law, the Court thus not being competent to verify the legitimacy of the order with respect to Article 8 ECHR. Some interpreters of this decision have stressed the significance of this argumentation. In the view of Joseph H. H. Weiler, the Court seemed to miss the principal point by linking the question of the direct or indirect applicability of the Agreement to its own possibilities of control over matters related to fundamental rights[530]. From the existence of a margin of action for the states – due in turn to the absence of positive Community norms – the ECJ concluded that this area fell totally outside the scope of Community law for the purpose of review by the Court[531]. In brief, the Court assumed as incompatible the existence of a Member States’ competence with its own jurisdiction over fundamental rights[532]. III. The realisation of precariousness in judicial practice 1. The execution of expulsion orders: the reluctance of the ECtHR to interfere with state powers. The analysis proposed here intends to show the reasoning followed by the ECtHR in the implementation of the measures of expulsion. According to the Court, an expulsion can be enforced as long as the finality pursued with it responds to a series

of aims that the Court admits as general and just interests of the states and which prevail over the rights of the alien. Essentially, the Court has maintained the general terms used by the Convention when referring to the national interests, leaving thus a very wide margin of appreciation to the states. Through the acceptance of these broad general formulas, the Court has consecrated an extensive variety of cases in which the rights of the alien can be limited. Ultimately, the Court seems to depart from the principle that in seeking deportation the state is pursuing a legitimate aim, the aim being the maintenance of public order. At the core of the debate in effect lies the conception of the superiority of the organs of a state to establish a system of protection of human rights or, in other words, the recognition of the importance of national legal protection. However, by refusing to specify further notions such as public order, and thus build a conceptual framework which facilitates rather than obscures the balancing process, the Court confers on the states a very wide margin of appreciation, in effect perpetuating the threat that the expulsion represents for aliens[533]. To a large extent, the arguments admitted by the Court to justify the orders of expulsion are concentrated on the right to family and private life, the Court having adhered to the structure set by Article 8.2 ECHR and having thus defined a wide list of general situations in which this right can be limited. For instance, in the Abdulaziz and others judgment, although the Court ended up declaring contrary to the Convention the order of expulsion[534], it first proceeded to a thorough analysis of the reasons argued by the British government to justify the deportations. In the reasoning of the Court[535], arguments such as the need to protect the domestic labour market or, simply, to restrain primary immigration in order to preserve the social peace, can prevail over the right of the alien to family life and thus justify the removal of aliens from the territory of the states[536]. Nevertheless, other arguments allegedly justifying the deportation of aliens have been referred to in the framework of provisions different from Article 8. For instance, when national security is raised, the Court is likely to exercise an increased measure of deference toward the primary decision maker. As affirmed in the case of Chahal concerning the expulsion of a terrorist, the state can legitimately expel aliens in order to preserve its internal security[537]. Likewise, as indicated in the case of Soering[538], the state has the right to remove from its territory an alien within the framework of a procedure of extradition, in order to impede the impunity of criminals and thus assure the efficiency of the legal mechanisms of international justice[539]. In addition to the wide margin of appreciation thus conferred on the states, the definition of these measures under the general aim of preservation of public order has important practical consequences. That is, essentially, the exemption from the set of procedural guarantees that are foreseen by the Convention for the sphere of civil and criminal law. Indeed, Articles 6 and 7 of the Convention are not applicable in the sphere of entry and permanence of aliens into the territories of the states, since the decisions adopted in this field are neither civil nor criminal[540]. This has been repeatedly stated by the Court in decisions such as Maaouia, 5 October 2000[541]. As the Court argued, the nature of these decisions is administrative, regardless of the consequences that the order of expulsion may have for the private and family life of the alien affected by it, and of the internal qualification of the measure that the national order might give to the decision. Moreover, in the view of the Court, the fact that special protocols have been enacted for the expulsion of aliens demonstrates

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further that the guarantees established in Article 6 were not conceived for the sphere of immigration. Likewise, other rights such as personal freedom are also affected by the execution of these orders. In the reasoning of the ECtHR, though, the interference with this right is not so much caused by the legitimisation of the expulsion itself as by the measures auxiliary to the practical execution of the expulsion. As the Court has declared, the right to personal freedom can be subordinated to the fulfilment of the general interests of the states[542]. The stage of implementation of the measures of expulsion may involve the provisory deprivation of liberty, the detention of the alien being sometimes necessary. This was the case in decisions such as Scott[543], or Van der Tang[544], where the risk of flight and, therefore, the aim of preserving the functioning of the criminal procedure, justified in the view of the Court the extended detention of the alien. 2. The execution of expulsion orders: the confirmation by the ECJ of the instrumental approach. As already stated, the Member States are sovereign to organise according to their own discretionary powers the possibilities of removal of third-country nationals, inasmuch as these are not involved in the realisation of the Community economic goals. Consequently, the ECJ is only competent to intervene in this sphere to the extent that third-country nationals affect the pursuance of the Community objectives. From this perspective, the impact of the ECJ on the removal of third-country nationals is an indirect one, its lack of control being to a certain extent equivalent to the express acceptance of the measures of deportation by the ECtHR. In this sense, the degree of threat for the stay of third-country nationals in the territories of the Member States is conditioned by the – wider or narrower – jurisdiction of the ECJ over these measures. This section will thus analyse the delimitation by the ECJ of its own competence, vis-a`-vis third-country nationals, in order to grant the realisation of the Community objectives. The criterion implemented by the Court is strict in this respect: only the existence of a precise link with the Community can confer protection and thus avoid the otherwise revocable character of aliens’ permanence in the territories of the Member States. For instance, in the Morson judgment[545], the Court was confronted with the question of whether Community law obliged the Dutch government to authorise the entry to thirdcountry nationals linked by family ties to Community nationals who reside in the same country of their nationality. Specifically, the case concerned two siblings, both of them Dutch nationals, who wanted to be joined in The Netherlands by their parents, these being nationals of Surinam. The Court declared that no such obligation existed under Community law, since the applicants resided in The Netherlands and were thus not exercising a Community freedom. As the Court argued, the case constituted a purely internal situation with no link, therefore, to Community law. In a later decision, Uecker and Jacquet, the ECJ ratified this principle, by denying the existence of any Community rights for the spouses of two German nationals who had been residing with their husbands in Germany but had been rejected the renewal of their permanence permits[546]. As the Court confirmed, this kind of situation does not concern Community law, the decision on their expulsion falling exclusively within the competence of Member States. Furthermore, in the view of the Court, only Member States alone are competent to decide whether or not to adopt the necessary measures in order to avoid discrimination of their own nationals with respect to the nationals of other Member States who, in the exercise of Community freedoms, can benefit from the protection of Community law in the territory of other

states, and be thus joined in them by their family Members, irrespective of their nationality[547]. Moreover, from the perspective of Community law, even if the link with the realisation of its objectives has existed, once it ceases, the derivative protection previously conferred is thus automatically suppressed, the threat of expulsion then reemerges. Particularly significant from this point of view is the Diatta judgment[548], in which the Court dealt with the case of a Senegalese woman who had married a French national resident and working in Berlin. After some time, Ms Diatta separated from her husband with the intention of divorcing him. The two questions referred to the Court intended to establish whether the members of a migrant worker’s family, as defined in Article 10.1 of the Regulation 1612/68, were necessarily required to live with him permanently in order to qualify for a right of residence under that provision[549], and whether Article 11 of that Regulation established a right of residence independent of that provided for in Article 10[550]. The Court held that Article 10 could not be interpreted restrictively and that ‘‘the marital relationship could not be regarded as dissolved so long as it had not been terminated by the competent authority’’[551]. However, as regards Article 11, it declared that the terms of the provision did ‘‘not confer on members of a migrant worker’s family an independent right of residence, but solely a right to exercise any activity as employed persons throughout the territory of the state in question. Article 11 cannot therefore constitute the legal basis for a right of residence without reference to the condition laid down in Article 10’’[552]. Accordingly, in the reasoning of the Court, once the divorce was complete, the rights under Community law were dissolved as well and Ms Diatta could thus be expelled[553]. In this sense, with respect to the case of Demirel, in which the Court directly denied its jurisdiction by arguing that no protection could be conferred as long as the provisions of the Association Agreement could not be considered as directly applicable[554], in Diatta, the consequences of the reasoning of the Court are in a way different. To a certain extent, they also diverge from the ones observed in the cases of Morson or Uecker and Jacquet. In Diatta, the protection existed already, being automatically suppressed with the dissolution of the link to the Member State national, although a new situation had been generated by the recognition of Community rights. Indeed, the Court did not alter its usual reasoning at the moment of requiring the existence of a link, and thus simply concluded its lack of competence to control whether any violations of human rights had been caused. B. Emergent rights: the impact of the evolutionary interpretation I. The introduction of procedural limits to precariousness 1. The introduction of protection by the ECtHR: the Convention’s general safeguards. A fundamental and innovative feature of the ECHR is its territorial character. In a way, it compensates for the Convention’s lack of express reference to aliens, by granting the Court an exceptional instrument for the construction of a general status of aliens. Many of the rights recognised in the Convention are in effect general safeguards from which individual responses have been derived indirectly, along with the rapid consolidation of immigration. Specifically, these guarantees have proved determinant in offering possibilities for responding to the execution of the measures of expulsion, by limiting the wide administrative prerogatives governing these orders.

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Article 6 of the Convention on the right to a fair trial represents a clear example in this respect. As interpreted by the Court, this right has offered a basis for the construction of a status for aliens, although through cases not always directly related to the type of situations particularly representative of the sphere of immigration. The importance of this provision is reinforced by the reasoning of the Court on the effectiveness of the rights of the Convention. This idea was expressly declared by the Court in the Artico decision, in which the Court affirmed the obligation of the state to adopt all the necessary measures to ensure the effectiveness of the right to defence and legal assistance. This decision did not concern, however, the case of an alien, but of an Italian national against its own government. As the Court declared, the violation of this right is possible even if no effective harm has been caused[555]. This principle was reiterated some years later, in the Pakelli judgment, this time in relation to an alien, a Turkish national convicted in Germany for traffic of drugs, and to whom the German government had denied the right to free legal assistance by arguing that his situation did not fall under any of the categories foreseen by German law[556]. After affirming the relevance of the oral hearings, the Court recognised the right of the applicant to intervene in them and thus declared, in the interest of justice, the duty of the German state to provide for this right[557]. The right to an independent and impartial tribunal has been declared as equally relevant to ensuring the right to a fair trial. The Court consolidated this principle in relation to aliens in the Sramek decision[558], concerning the case of an American national who had bought a plot of land in Austria. In this decision, the ECtHR declared that the right to a fair trial had been violated on the grounds that the organism in charge of deciding whether the sale contract was valid (the ‘Regional Authority’) could not be considered to meet the condition of impartiality required by Article 6, since the majority of the members of the tribunal represented the Austrian government. As the Court reasoned, not only is it necessary to materially fulfil the requirements foreseen in Article 6, but it is also equally indispensable to maintain the appearance of this being so[559]. The Luedicke, Belkacem and Koc¸ decision refers instead directly to problems specific to immigration, such as the right to an interpreter, which the Court expressly linked to the requirement of effectiveness[560]. According to the Court, the right to a fair trial can only be effectively granted if the parties are placed in a situation of equality which, in the case of aliens, can only be assured if a proper comprehension of the language is provided. Consequently, the Court declared the obligation of the German state to pay for that service as part of the right to free legal assistance recognised in Article 6[561]. Actually, the importance of judicial review is emphasised throughout the case law of the Court, being present in the different spheres of aliens’ life and in relation to other rights of the Convention. This occurs for instance in situations concerning the right to personal freedom. As in fact established by Article 5 of the Convention, the possibility of judicial control represents the key element in order to grant an effective protection against arbitrary deprivations of liberty. With respect to the right to a fair trial, the right to personal freedom has a direct impact on the type of situations concerning aliens. The very text of the provision is explicit in this respect, directly foreseeing – in paragraph 1.f – the possibility of detention in order to proceed to the expulsion of aliens who have entered illegally into the territory of the states. However, the intervention of the Court in this sphere has been only incidentally relevant for aliens. This is for instance the case of decisions such as

Bozano or Erkalo, the Court having given in these judgments a clear definition of what should be understood under the notion of arbitrary deprivation of liberty and having thus set clear limits to the possibilities of intervention of the administration. As the Court argued in Erkalo[562], although the interpretation and implementation of domestic law falls under the exclusive competence of the national courts, the right to personal freedom does not only involve the need to respect the legality of the procedure set by the law but also, and most importantly, the avoidance of an arbitrary restriction of that right. In the view of the Court, this can only be granted by an effective judicial control of the detention, which had not been respected in the case of Erkalo, who had been held in detention for over two months without any supervision by the courts[563]. Likewise, in Bozano[564], the Court censured the way in which the detention had been carried out, without giving any possibility of reaction to the alien. In the view of the Court, it actually amounted to a disguised form of extradition designed to circumvent the ruling of the French court which had opposed the extradition demanded by the Italian authorities, and not to a ‘‘detention’’ necessary in the ordinary course of ‘‘action . . . taken with a view to deportation’’[565]. A further development of this reasoning is to be found in the Amuur decision, in relation however to unlawful entries[566]. The Court insisted on the territorial character of the Convention and affirmed, thus, the right of aliens to a fair trial also in the borders of the national territories, this including the international areas of airports. The French government had denied that the retention of aliens in those areas amounted to a deprivation of liberty since, in its opinion, aliens were always free to go back to their country of origin. The ECtHR considered that this argument was merely virtual and declared, thus, that Article 5 of the Convention had been violated on the grounds that the necessary guarantees in order to impede an arbitrary deprivation of liberty had not been respected. Also, as explicitly established in Article 5.3 of the Convention, the duration of the detention cannot go beyond certain limits. As argued by the Court, though, the maximal length can only be defined in light of the circumstances in each case. This principle was declared in decisions such as Scott[567], or Van der Tang[568], both against Spain, the Court declaring in the former that the Spanish authorities had not acted with the degree of special diligence enshrined in Article 5.3. In the view of the Court, the existence of a serious suspicion of the involvement of the person in serious offences (rape, in that case) and the risk of his or her absconding do not alone suffice to maintain a long period of pre-trial detention. After a certain point, the observation of additional guarantees is necessary[569]. Finally, the Court has ultimately insisted on the importance of granting sufficient judicial remedies to avoid the risk of arbitrary deprivations of liberty. This was reiterated in the Soumare decision[570], in which the Court declared that Article 5.4 of the Convention was violated on the grounds that the situation of the French legislation did not, a priori, assure with sufficient certainty the feasibility of the remedies. Likewise, in Chahal, the Court affirmed that although the access of the national courts to certain information can be legitimately limited in situations where there is a threat to national security, in the case of deprivation of liberty, this has to be compensated by other means, which had not been respected on that occasion[571]. 2. The introduction of protection by the ECJ: the international agreements. According to the reasoning consecrated by the ECJ, the realisation of the Community objectives can imply the modification of the limits originally foreseen for its action. Specifically, it can

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signify the ulterior inclusion of third-country nationals under its scope. As examined earlier in relation to the Demirel judgment, the Association Agreement signed by the EC with a third state – Turkey – represents an example of this. Indeed, through the expansion of the external relations of the EC, third-country nationals can become protected by Community law. Under this law, the rights of non-EC nationals can be based on their status as nationals of a country with which the Community has concluded an international agreement. Several agreements concluded by the Community with third countries make provision for the specific way in which the EC Member States shall treat nationals of those countries[572]. These provisions may, moreover, be implemented by acts adopted by a joint council instituted by the agreement. Already in Demirel[573], the ECJ had held that such agreements as well as acts adopted in order to implement the agreements were, as far as the Community is concerned, acts of one of the Community institutions and that their provisions form, from their entry into force, an integral part of the Community legal system. On this ground it accepted jurisdiction to give a preliminary ruling concerning the interpretation of such provisions. Furthermore, the Court declared itself in principle prepared to regard a provision in an international agreement as being directly applicable and, consequently, relied upon by nationals of these countries. However, in practice, the Court proved reluctant to render a judgment in this sense. As the ECJ established in the Demirel decision, a provision in such agreement must be regarded as being directly applicable only when, regard being had to its wording and the purpose and the nature of the agreement itself, the provision contains a clear and precise obligation which does not remain subject, in its implementation or effects, to the adoption of any subsequent measure[574]. Following this reasoning, the Court was unconvinced that these conditions were fulfilled in that specific case and thus denied the applicability of the protection provided for in the international agreement to Ms Demirel[575]. In practice, the Court did not accept to declare the direct applicability of this type of agreement until the Sevince judgment[576]. As in Demirel, the Court was in that case confronted with the implementation of the Association Agreement with Turkey and, specifically, of the Decisions Nos. 2/76 and 1/80 of the Association Council. Mr Sevince was a Turkish national to whom the Dutch government had denied the renewal of his residence permit though it had granted him an employment certificate which remained valid until his appeal against the refusal to renew his permit had been definitively dismissed. The question put before the Court was thus whether the work realised during the period of suspension of the decision of refusal entitled Mr Sevince to fall under the protection of the Decisions. In this sense, the ruling applied to Article 2.1.b) of Decision No. 2/76 and Article 6.1.3) of Decision No. 1/80, under which, after five and four years respectively of legal employment in an EC Member State, a Turkish worker was to enjoy free access to any paid employment of his or her choice in that state. It applied, also, to Article 7 of Decision No. 2/76 and Article 1 of Decision No. 1/80 which contained a standstill clause for new restrictions on the access to employment on behalf of workers having legal rights of residence and employment within the territory of the contracting states. The Court continued the reasoning initiated in Demirel: it affirmed its jurisdiction to give ruling on secondary Community legislation of this specific type and accepted in principle the applicability of the provisions so long as they could be deemed sufficiently precise and unconditional. However, when specifically analysing whether the

Decisions in question could be considered as having direct effect, the Court seemed to detach itself from the reasoning held in Demirel and declared for the first time the direct effect in the Member States of certain provisions of these Decisions. Indeed, with respect to its former position, which could ultimately be interpreted as a means to avoid depriving the Community of any leeway for further negotiations with the other contracting partners[577], the reasoning of the Court in Sevince constitutes a turning point. Against the Dutch government, the Court held that direct effect could be accorded to certain provisions of these Decisions even though they made provision for the adoption of implementing measures, they had not been published and had narrow safeguard clauses[578]. The ECJ acknowledged that the two Decisions regulated the right of access to employment of the Turkish workers without referring to the right of residence. However, as the Court argued further, these two aspects of the personal situation of a Turkish worker are so closely interrelated that ‘‘by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provisions in question necessarily imply – since otherwise the right granted by them to the Turkish worker would be deprived of any effect – the existence, at least at that time, of a right of residence for the person concerned’’[579]. Finally, however, this was of no practical avail for Mr Sevince, since the Court considered that he was not deemed to have ‘legal employment’ within the meaning of the Decisions. According to the reasoning of the Court, this term necessarily refers to a situation of stability which could not be considered to exist in the specific case where the worker had been merely authorised to work until his challenge to the decision denying the renewal of his permanence permit was complete. An evolution with respect to this reasoning seems to be implied in a later ruling of the ECJ, Kurz, 19 November 2002[580]. In this decision, the ECJ expanded the scope of the Association Agreement with Turkey by assimilating under the concept of worker the economic activity pursued in the course of vocational training. In this way, it recognised the unconditional right to seek and take up any freely chosen employment, without being subject to any priority for workers of Member States, and on a corresponding right of residence likewise founded on Community law, thus precluding national legislation from refusing a residence authorisation until a timelimit has been placed on the effects of the expulsion order. Moreover, the Member State concerned in this case, namely Germany, will have to amend its Aliens Act so that certain Turkish nationals will be excluded from the scope of one of its provisions on the consequences of expulsion. Also, in three separate rulings of 27 September 2001, the ECJ confirmed the direct effect of the Association Agreements concluded between the EC and Central and East European States, shedding considerable light on the interpretation to be given to their provisions[581]. The lack of clear and precise provisions in this text had in fact resulted in some confusion as to the extent to which the nationals of these states may rely on the right to enter an EU Member State and take up employment as self-employed. Most important in these cases, though, is the new underlying reasoning of the Court: unlike the Turkey or Morocco Agreements cases, the Court explicitly used rights-based arguments in relation to this Agreement, by referring to the ECHR and, specifically, to the rights to family life or to property. This was for instance the case in Kondova and Gloszczuk[582].

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II. The consolidation of substantive limits to precariousness 1. The recognition by the ECtHR of a right to permanence: the interpretation par ricochet. The analysis in this section will show how the Court, in the sphere of certain rights such as family life or the right not to suffer any inhuman or degrading treatment, does actually modify the fundamental structures of the Convention. It creates, out of the general framework of this text, and in spite of the wording of its provisions, new and specific responses for the field of immigration. In the case law of the Court, the purpose and the aims of the Convention become objectives to be attained and thus capable of being perfected and extended. Such a choice leads the Court to an evolutionary and teleological method of interpretation as well as, ultimately, to the emergence of rights initially not foreseen by the drafters of the Convention. Essentially, the Court has gone so far as to recognise a right of permanence to aliens. Indeed, apart from restricting the way in which the execution of the expulsions should be carried out, the reasoning of the Court has sometimes also opposed the possibility of expulsion itself. This flexibility is in fact the extraordinary aspect of the reasoning of the ECtHR and what confers on the Convention its originality as a jurisdictional system of protection of human rights, capable of evolution with the changes of society, despite its rather limited catalogue of rights. This idea has had a precise expression in the sphere of immigration: although the Court admits that the right of aliens not to be removed from the territory of the states cannot possibly be inferred from the text of the Convention, it affirms nonetheless that the execution of the orders of deportation cannot result in a violation of the rights recognised in its provisions either. According to the technique of interpretation par ricochet, the risk of violation of these rights can oblige the states to renounce execution of the expulsion and, ultimately, conferring a right different from the one at issue and to which the alien was in principle not entitled. This reasoning was inaugurated by the Court in its famous Abdulaziz, Cabales and Balkandali decision[583]. Actually, the Court denied in this judgment that the refusal of residence permits to the husbands of the applicants had caused a violation of Article 8, since this provision, as the Court argued, guarantees respect solely for the family life already existing, whereas the couples concerned had not established such life when the request was made. Moreover, according to the Court, there was no obstacle to the couples’ living together in the respective countries of origin[584]. However, when analysing the legitimacy of the refusal of the permissions from the perspective of the principle of non-discrimination, the Court declared that such refusal constituted a discrimination on the grounds of sex, and thus a breach of Article 14, on the grounds that under British law it was easier for a man settled in the United Kingdom than for a woman so settled to obtain permission for their non-national spouse to enter or remain in the country of settlement. According to the reasoning of the Court, the principle of equality of the sexes is today so important that it cannot be sacrificed on behalf of objectives such as the protection of the domestic labour market, which, in the view of the government, was more directly affected by the entry of men than of women[585]. Notwithstanding this important decision, Article 8 of the Convention has been predominantly implemented in relation to the removal of aliens. The subsequent case law of the ECtHR is in effect a further development of the basis and scope set out in Abdulaziz, the Court having introduced Article 8 in relation to expulsions in the Berrehab decision[586]. Mr Berrehab was a Moroccan national, father of a Dutch child, and to whom, after his divorce from a Dutch woman, the government of The Netherlands had refused the renewal of his residence permit, subsequently ordering his deportation. Against the arguments of the government, the Court affirmed that from

the moment of the child’s birth of a marital union and by the very fact of it, there exists between the child and the parents a bond amounting to family life within the meaning of Article 8[587]. The Court moreover declared that since the case did not concern an alien seeking admission to The Netherlands for the first time but a person who had lawfully and peacefully lived there for several years, the measure of expulsion constituted a disproportionate interference with the right to family life and, thus, a breach of Article 8 of the Convention[588]. The same test was implemented in Moustaquim[589], concerning again a new type of situation. Moustaquim was a young Moroccan who had been expelled from Belgium, the country where he had practically spent all his life and where he had built all his family and social ties, on the grounds of the numerous offences that he had committed. In the reasoning of the Court, the measure appeared as disproportionate taking into consideration the specific circumstances, given that the applicant had no practical links with his country of origin. Indeed, since the right to family life does not confer an absolute protection, the Court is thus obliged to proceed in each case to an evaluation of the measure in light of the material circumstances and, ultimately, of the principle of proportionality. According to the test developed by the Court, based on the limits set out in Article 8 itself, after verifying the existence of a state interference with the right, in order to accept it as legitimate, the measure in question has to meet the following requirements: it has to be adopted in accordance with the law, it has to pursue a legitimate finality and, lastly, it has to constitute a measure necessary in a democratic society. Actually, only Article 3 of the Convention confers an absolute protection. As the Court has affirmed throughout its case law, the pursuance of general interests by the state cannot justify in any event the interference with the right not to suffer any degrading or inhuman treatment[590]. The basis of the ECtHR’s present approach was set out in Soering[591], where the Court revealed Article 3 as an extraordinary instrument for both the consolidation of aliens’ status and the development of the Convention as a mechanism of protection of human rights. The case concerned a German national, detained in Great Britain, pending extradition to the United States of America to face charges of murder. In this decision, the Court declared that Article 3 not only prohibits the states from causing inhuman or degrading treatment within their jurisdiction but also embodies an associated obligation not to put a person in a position where he or she may suffer such treatment or punishment at the hands of other states. In this way, an individual may not be surrendered out of the protective zone of the Convention without the certainty that the safeguards which he or she would enjoy are as effective as the Convention standard[592]. Specifically, the Court declared that since the likelihood of the feared exposure of the applicant to the ‘‘death-row phenomenon’’ had been demonstrated, Article 3 was brought into play and declared, after the examination of the specific conditions, that the extradition would expose the applicant to real risk of treatment going beyond the threshold set by Article 3[593]. In its subsequent case law, the ECtHR reiterated the absolute character of the right recognised in Article 3 by specifying, and actually expanding, the scope of this provision[594]. For instance, in the Chahal decision, the Court declared that the interests of the state cannot prevail over private interests even in cases of danger for national security, such as terrorism[595]. Likewise, in H.L.R. v. France, the Court declared that Article 3 applied also to inhuman or degrading treatment resulting from

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the actions of private individuals where a contracting state had, through its acts or passivity, failed to comply with its duties under the Convention. The case concerned a Colombian national who had been detained in France after having been found in possession of drugs and against whom an expulsion order had been issued, after he had assisted the French authorities in obtaining information on the organisers of the drug traffic. In the view of the Court, since the French State had sought and obtained from H.L.R. information, it had a duty to protect him from the possible vengeance by the drug traffickers who had recruited him as a smuggler if he were to return to Colombia[596]. Therefore, as in the case of the right to family life or, to a lesser extent, of other rights such as the right not to suffer discrimination, the Court has ended up conferring on aliens a right not to be removed from the territory of the host states and, thus, in the final analysis, a right of permanence. Though, in the case of the right not to suffer any degrading or inhuman treatment, the Court has introduced a further stage in its reasoning: the affirmation of the absolute character of this right has led the Court to expand the sphere of impact of the Convention to non-contracting states and, ultimately, and most importantly, to thus create a type of structure which can eventually be extended to other areas relevant for the life of aliens[597]. 2. The recognition by the ECJ of a right to permanence: the protection of Community freedoms. The conferral of rights on individuals other than EC nationals constitutes an indirect step in the realisation of the objectives of the Community. The recognition of such protection becomes the only effective means when Community freedoms cannot be granted directly and thus necessitate additional or intermediate mechanisms. In these cases, protection is conferred on third-country nationals but, in effect, on behalf of someone or something else, which is ultimately the holder of or justification for the right. In this sense, third-country nationals become only de facto holders of the right, since its recognition has merely been an instrumental one[598]. Indeed, as with the ECtHR, the ECJ has adopted the teleological approach in its decision-making. The realisation of its aims justifies the flexibility with which its interpretation is carried out as well as, ultimately, the progressive expansion of its sphere of intervention. However, whereas the ECtHR is a court directly created for the protection of fundamental rights and the expansion of its scope means that new rights are recognised, in the case of the ECJ, the relevance of this process is greater. Since its jurisdiction is in principle subordinated to the realisation of economic goals, what is designated here as indirect expansion is the conferral of rights other than purely economic, but also, and most importantly, the diversification of the individuals regarded as holders of such rights. Therefore, following the preceding subsection, the analysis proposed here tries to examine the type of result to which the teleological method of interpretation has led in the case of the ECJ. That is to say, it intends to analyse the limits that are finally set on the prerogatives of the Member States in relation to third-country nationals, which represent a sphere initially regarded as falling outside the scope of the EC and, thus, as exclusive competence of the states. In brief, after analysing (in section I) the type of direct protection that is conferred on third-country nationals under international instruments such as the Association Agreements with third countries, the indirect protection that is granted through the jurisdiction exercised by the Court on Community freedoms will be examined. Essentially, whereas in the sphere of the Community’s external relations, the ECJ has proved reluctant to grant effectiveness to the rights recognised to third-country .

nationals[599], whenever a Community freedom is at stake, the Court is quick to condemn any impediment to its recognition. This is especially clear in relation to freedom of movement of nationals within the internal market, which requires that obstacles to their mobility shall be eliminated, in particular as regards their right to be joined by their family and the conditions for the integration of that family in the receiving country. In the Dzodzi judgment[600], the Court held that if the national law renders a provision of Community law applicable to a purely internal situation, the Court has then jurisdiction to give a preliminary ruling on the interpretation of that Community provision. Acting on this basis, the Court then defined the right of residence and the right to remain in the territory which Directive 68/360 and Regulations 1612/68 and 1215/70 confer upon the spouse of a worker who is a national of a Member State, employed or previously employed in the territory of another Member State, as well as the scope of the legal protection required by Article 8 and 9 of Directive 64/221. The Court had been directly confronted with the implementation of such rights in the case of Diatta, some years earlier[601]. As already indicated[602], the case concerned a Senegalese national married to a French man and living in Berlin. The renewal of her permanence permit had been denied on the grounds that she did not live any longer as the marital partner of an EC migrant worker and was thus no longer protected by EC law. Opposing the German government, the Court ruled that a member of a migrant worker’s family is not required to live permanently with him in order to qualify for a right of residence under Article 10 of Regulation 1612/68. The Court held that this provision could not be interpreted restrictively, declaring instead that its interpretation had to be done according to the spirit of Article 11 of the same Regulation, which gave the member of the family the right to take up any activity as an employed person throughout the territory of the Member State. Moreover, as the Court added, the marital relationship could not be regarded as dissolved so long as it had not been terminated by the competent authority[603]. Nevertheless, the fact that freedom of movement within the common market has also benefited relatives who are nationals of third countries has not been exclusively the Court’s achievement. Numerous regulations and directives already stipulated that the various rights are extended to the spouse and the relatives irrespective of their nationality. The reasoning of the Court has however consolidated this trend and allowed for a further development of this derivative construction. In the case of freedom to provide services, though, the Court did entirely inaugurate an indirect way of extension of protection to third-country nationals, by deciding that the nationality of the employees engaged by the provider of services should not constitute an obstacle. In the Rush Portuguesa judgment[604], the Court made clear that this freedom carries with it the right for a firm established in a Member State – and entitled thus under Community law to provide services in another Member State under the same conditions as are imposed by that state on its own nationals – to use its own staff, regardless of their nationality. The problem in this case resulted from the fact that, while the freedom of providing services was already fully applicable between Portugal and the older members of the Community, freedom of movement had been temporarily derogated. When a Portuguese undertaking arranged for Portuguese workers to come to France for the purpose of carrying out work which it had subcontracted in that country, the French immigration office claimed payment from it of the special contribution payable by an employer employing foreign workers in breach of the provisions of the labour code.

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The Court declared that under the EC Treaty, Member States are precluded from prohibiting a provider of services established in another Member State from freely travelling within its territory with whole of its staff, or from making the movement of the staff in question subject to restrictions such as requirement to carry out on the spot recruitment or to obtain working permits. To impose such conditions on the provider of services of another Member State would be to discriminate against him in relation to his competitors established in the host country[605]. It appears, thus, that the freedom to provide services in another Member State implies the right to employ non-EC nationals for that purpose and that the host state may not make this freedom subject to restrictive conditions. Indirectly, therefore, it also implies the possibility for third-country nationals to reside and work in the host Member State. Indeed, the right belongs to the Community national (in this case, the employer as part of its right to provide services), the third-country national being then entitled to enjoy the derived right only so long as his or her employment relationship continues to exist. This reasoning was confirmed in later decisions such as Vander Elst[606], concerning a Belgian undertaking providing services in France and employing its own workers of Moroccan nationality. III. Questioning the premise of precariousness 1. Beyond the potentiality of a system of protection of fundamental rights: the limits of a teleological interpretation by the ECtHR. The analysis proposed here intends to examine the successive development of the teleological method in order to see what are its ultimate consequences. Essentially, it will be argued that the enforcement of this reasoning results in a continuous expansion of its sphere of protection, leading sometimes even to positions in which the original justification for the adoption of this method is no longer recognisable. The development of Article 8 offers a clear example in this respect. In particular, the Beldjoudi decision illustrates the further transformation of this method’s original premises[607]. In this case, the Court conferred for the first time on the right to family life a protection similar to the one enjoyed until then by Article 3 exclusively. In spite of the numerous offences committed by the alien and the threat his presence in the country may have posed to public order, the Court declared the right of the alien to stay in the host country on the sole grounds of the family links established there. Also, the use by the Court in this decision of the expression ‘family life’ reveals the transformation undergone by this notion: despite the wording of the judgment, the protection conferred seemed grounded on the right to private life, rather than on the right to family protection. In contrast to cases such as Moustaquim[608], in Beldjoudi, the determinant argument presented by the applicant was not so much his family links in the host country – which fundamentally consisted of his marriage to a French national – as the rupture that the expulsion would represent with his private and social ties in France, the host country, and where he had spent all his life. The same evolution is discernible in Nasri[609], where the Court materially referred to the private and social life of the applicant, although it formally grounded its reasoning on his family life. Nasri, convicted in France for the commitment of a number of thefts and gang rape, was a deaf and mute young Algerian for whom, in the view of the Court, the expulsion to its country of origin – where he had in fact never lived – and away from his family, would have deprived him of the minimum psychological and social equilibrium[610]. Given the exceptionality of the circumstances, the declaration by the Court of the violation of Article 8 was not contested. The specific use by the

Court of the notion of family life raised however much debate. Ultimately, as in Beldjoudi, it transferred the issue of the expulsion of aliens to a new sphere: through the idea of private life, the Court seemed to be responding to the controversial situation of second-generation immigrants, fully integrated in the host country, and nevertheless threatened by the possibility of expulsion. In the final analysis, the evolution in the reasoning of the Court reveals a resolution to expand the scope of the Convention, rendering it thus capable of reaction to new situations. However, instead of explicitly defining new general principles, the Court continued its line of casuistic solutions[611]. The reasoning initiated by the Court in Beldjoudi was not maintained in its later case law[612]. In its subsequent decisions, the Court seemed to go back to a position consistent with the relative character of the right to family life, thus requiring the existence of clear family links in order to declare the illegitimacy of the expulsion[613]. Moreover, the seriousness of the offences committed by the aliens became decisive, justifying practically in all cases the deportation of the alien, regardless of the eventual family ties in the host countries[614]. Indeed, the consolidation by the Court of new ways of protection for aliens was ultimately achieved through Article 3. Under the principle of human dignity, the Court introduced, in D. v. the United Kingdom[615], a major innovation in its reasoning[616]. The Court declared that the expulsion of D. to his country of origin would constitute in itself a breach of Article 3, since the applicant – who had been arrested in the United Kingdom for drug trafficking and was at an advanced stage of the AIDS illness – would not be able to benefit there from the medical service that he was obtaining in the United Kingdom, and this inevitably would only precipitate his death. In this sense, the violation of the right not to suffer any degrading or inhuman treatment was not due to the conditions of the country of destiny which, taken alone, did not in themselves infringe the standards of Article 3, but to the loss of the conditions enjoyed by the applicant in the host country, which would be directly caused by his removal from that country. Ultimately, the Court seemed to be thus abandoning the reasoning that had originally motivated the use of Article 3: whereas in Soering, the Court had introduced the associated interdiction to send aliens to countries where a breach of Article 3 was to be expected, in D., the Court affirmed that this interdiction could also derive from the expulsion itself, this very fact being likely to be contrary to the right not to suffer any degrading or inhuman treatment. By the same token, the direct responsibility for the violation of Article 3 was also transferred from the country of destiny to the country that orders the expulsion, whereas until this decision, the host country was to be held responsible in an indirect way only. In the final analysis, therefore, beyond deriving the possibility of permanence from the interdiction of expulsion, the Court actually conferred a right not to be expelled, since the very act of the removal is what is inhuman or degrading[617]. However, as in the decisions concerning Article 8, in D., the Court did not explicitly admit the changes undergone in its case law either. It tried to justify this solution by arguing for the need to confer flexibility on the Convention and insisted moreover on the exceptionality of the case and on the humanitarian considerations at issue[618]. In the final analysis, this lack of clarity and certainty in the action of the Court reveals the structural limits that characterise its approach. These are limits, ultimately, inherent in the condition of the ECHR as an international treaty and, as such, dependent on the will of the states to commit themselves and to renounce to their

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sovereign prerogatives[619]. Indeed, the Convention was drafted with the intention of impeding the ultimate dependence of human rights on the sovereignty of the states, but its binding force remains dependent on the permanent consent of the parties to it[620]. Ultimately, the Court cannot unrestrictedly challenge this basic premise. 2. Beyond the limits of an instrumentalist approach: the potentiality of a teleological interpretation by the ECJ The following analysis intends to examine the further implications of the teleological method of interpretation, this time in relation to the ECJ. As in the case of the ECtHR, it will be argued that the practical realisation of this method ultimately leads the Court to results that go far beyond the initial premises set out for its intervention. In the case of the ECJ, though, the evolutionary approach represents a structural element in its jurisdiction. The Court has assumed a goals-oriented reasoning which compels the suppression of all the obstacles that may directly or indirectly hinder the obtaining of its economic objectives. In this sense, the idea of effectiveness achieves a particularly predominant role, leading to the expansion of the Court’s competence to areas that had been initially excluded from its jurisdiction. In the argumentation of the ECJ, the objective of integration justifies very rigorous supervision[621]. In this way, the construction of the EC becomes an ongoing process which, departing from a strictly economic reasoning, has progressively evolved to establish the protection of fundamental rights as one of its basis and, ultimately, to assume a much wider and ambitious ideal, such as the European Union. The ultimate challenge, though, is whether such a dimension will also be extended to areas, as the one concerning third-country nationals, zealously preserved by the Member States from the Community’s impact. This is actually the aim of this last section, which will try to show the current stage in the construction of the status of third-country nationals under the jurisdiction of the Court, in order to see whether a break from the strictly economic goals of the EC seems likely in relation to third-country nationals. It will be argued that beyond expanding the situations in which the Community freedoms indirectly grant third-country nationals a right of permanence, the Court now justifies the protection of these nationals on the grounds of arguments less indirectly related to fundamental rights. Ultimately, third-country nationals are protected by the very text of the ECHR, after this is filtered by the Community’s reasoning. In the final analysis, it is suggested here that the incorporation of the standard of fundamental rights and, specifically, of the ECHR, is what transforms the understanding of Community law and, eventually, of third-country nationals[622]. A first step in this direction is represented by the Singh judgment[623]. Although the Court confirmed the requisite of the family link to a non-Community national, it nevertheless widened the material sphere of situations falling under the protection of Community law by asserting the principle of non-discrimination[624]. Mr Singh was an Indian national who had married a British woman and had travelled with her to Germany, where they had both worked for several years before returning to the United Kingdom. Despite the United Kingdom’s argument that the British spouse’s right to enter again her country derived from national law and not from Community law, the ECJ declared that the period of working activity in another Member State enabled Singh to claim rights as the spouse of a Community worker. As the Court declared, the state’s order of expulsion was an obstacle to the exercise of free movement, having moreover discriminatory consequences – as between a Member State’s own nationals

and other Community nationals – which may discourage a national of a Member State from exercising his or her Community rights. Moreover, in a very recent judgment (Akrich), the Court has taken this principle further and has declared that the Community rights are to be granted even if the residence in another Member State has been planned by the partners in order, exclusively, to enter later the country of origin[625]. According to the Court, the only requirement is the authenticity of the marriage, the right to family life having to be considered by the Member States in any event. The necessity of effectiveness when granting the right to family life of Community nationals is also affirmed in MRAX[626], this leading again the Court to indirectly reinforce the rights of third-country nationals falling under this scope. In this decision, the Court analysed a Belgian circular aiming at combating marriages of convenience, by preventing third-country nationals having entered the country illegally from receiving a residence permit through marriage with a Belgian or a legally residing foreigner. Although the Court recognised that under Community law the Member States may demand an entry visa from third-country nationals who are members of the family of an EU national, Member States are to make available to such persons every facility for obtaining any necessary visas. The Member States are obliged to enable enjoyment of family life, as a factor consecrated as determinant in the realisation of the Community freedoms. In this sense, the Court declared the measure of expulsion foreseen by the circular as disproportionate and contrary thus to Community law[627]. Likewise, in Carpenter[628], the Court continued the extension of the area of protection of third-country nationals by declaring existent the link with Community law in a wider variety of situations. The applicant, a Philippines’ national, had unlawfully remained in the UK after the expiry of her permit, and married later a national from that country who, while resident there, provided services in the territory of other Member States. When the British government issued an order of expulsion against Ms Carpenter, she challenged the order before the ECJ. In opposition to the government, the Court ruled that Mr Carpenter was availing himself of the Community right freely to provide services, on the grounds that the services were being received by persons resident in other Member States. The Court moreover declared that since Ms Carpenter contributed to the realisation of the activity, by ensuring Mr Carpenter enjoyed a harmonious family life by travelling with him and taking care of his children, her expulsion would have interfered with the exercise of the Community freedom. After verifying that the right of residence of members of the family of a provider of services in his Member State of origin was not contemplated by the Directive 1973/148, the Court investigated whether protection could nevertheless be inferred from the principles or other rules of Community law. In the view of the Court, the expulsion amounted to an illegitimate breach of the right to respect for family life as guaranteed by Article 8 ECHR – to which Article 6 of the EU Treaty referred – since the order did not meet the requirements of proportionality set out in the Convention. Another explicit assumption of the ECHR standards in relation to third-country nationals is to be found in a far-reaching ruling, Baumbast and R.[629], in which the Court has widened further the scope of rights conferred on both EC-nationals and third-country nationals. The ruling concerned two families, both consisting of a spouse who was a third-country national. One was Mr Baumbast, a German national, who had been living and working as a Community worker in the United Kingdom with his family, composed of a Colombian national and two daughters, one of them by Mrs Baumbast’s previous relationship and, therefore, unlike her sister, without German

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citizenship. The British government denied the renewal of the residence permits arguing that Mr Baumbast had ceased to fulfil the conditions of an EU migrant worker since, although still resident in the United Kingdom, he was now working for third countries. The other couple consisted of a French national who was married to an American woman, and had two children who had both French and US citizenship. The family moved to the United Kingdom where they were granted permits, but after their divorce, the British government denied the renewal of residence permits to the wife and the children. As the Court reasoned in this decision, Community citizens are not to be automatically deprived of the protection enjoyed under Community law as soon as their exercise of Community freedoms comes to an end. Under Article 18 of the EC Treaty they are also to be granted protection on the grounds of their condition as citizens of the Union. Likewise, the Court declared that the children of an EC citizen who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker, are entitled to reside there in order to attend general educational courses. The fact that the children are not themselves citizens of the Union is irrelevant in this regard. By the same token, the Court declared that ‘‘where children have the right to attend general educational courses pursuant to Article 12 of Regulation 1612/68[630], that provision must be interpreted as entitling the parent, who is the primary carer of those children, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced (R.) or that the parent who has the status of citizen of the European Union (Baumbast) has ceased to be a migrant worker in the host Member State’’[631]. In the proceedings, the European Commission had actually appeared to support the position the right to family life as enshrined in Article 8 ECHR does not include a choice of country and, therefore, does not preclude expulsion of the entire family so that they can be together, or even of those members with a right of residence in the host state. The ECJ roundly dismissed these arguments. It opted instead for proclaiming the importance of the right recognised in Article 8, detaching it to a certain extent from the economic criteria that had solely justified its conferral in Community law until then. In this sense, the reasoning followed by the Court could be interpreted as subscribing to an understanding of Article 8 which could ultimately open new mechanisms of protection for third-country nationals, other than the purely instrumental ones. It remains however to be seen whether the future case law of the ECJ will explore further this path and, ultimately, whether its evolutionary reasoning can indeed go that far.

6. Internal mechanisms of protection of fundamental rights As a further stage in the deconstruction of the protection conferred on aliens, this chapter introduces a new possible determinant factor, this time concerning the national sphere. That is, the mechanisms of safeguard of the rights of the person in the three national legal orders considered in this study. After examining the principles set by the supranational jurisdictions as a possible cause of the national judicial approach to aliens, the same analysis will be now pursued in relation to the internal mechanisms of protection. For this purpose, this chapter will not proceed to an abstract analysis of these mechanisms but will instead examine their judicial implementation, trying thus to verify whether the degree of protection actually conferred is to a certain extent predetermined by the existing guarantees in the national legal orders. In this way, this chapter goes back to the individual analysis carried out in the first part of this work and, specifically, to the comparison undertaken in chapter 4, which structured the common and distinct features between Germany, France and Spain in the construction of a status of aliens. The ultimate aim of this chapter is to reinterpret the different national responses in light of the general constitutional and legal structures from which the courts depart in their intervention. Whereas the previous chapter had searched for an explanation for the convergence between the national courts in the actual protection conferred on aliens, this analysis interprets rather the differences between them as regards the degree and method of protection in each case. To a certain extent, though, this analysis also resumes the reasoning of the previous chapter. It verifies whether the supranational case law plays a determinant role in the national processes of protection of aliens or whether, instead, its influence is only marginal. Indeed, the analysis of the national instruments of reception of the supranational case law is necessary to see whether the principles set in the supranational case law are actually assumed by the national courts or whether, instead, their reasoning is independent of the supranational level. In this sense, this chapter tries to show the margin left to the national courts and, thus, whether they develop their responses from their domestic sources or whether they complete these responses in the supranational texts. In the final analysis, this feature represents an element of the national legal orders which indirectly characterises the judicial answer to the phenomenon of immigration. A. Precarious rights: the rejection of immigration on the grounds of the law I. The formulation of the premise of precariousness: different approaches to the same general principle As indicated in chapter 4, there are variations regarding the intensity with which the non-existence of a right to entry and permanence is materially expressed by the respective national courts. However, other disparities, such as the logical process followed by the courts, characterise the assumption of this premise and reveal the underlying general legal structures or, even, the official positions vis-a`-vis the phenomenon of immigration.

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For instance, in Germany and Spain, which are characterised by a clear and systematic scheme of fundamental rights and constitutional principles and guarantees, the reasoning of the courts seems to be based on a mere logical deduction from the respective catalogues of fundamental rights. Since freedom of movement is reserved to nationals both by Article 11 of the German BL and by Article 19 of the Spanish Constitution, the courts concluded that no right to entry could be claimed to exist in the case of aliens[632]. Instead, the reasoning of the French courts is less systematic in this respect. For its part, the Conseil Constitutionnel seems to argue in favour of the non-existence of this right on the basis of the absence of a rule or principle of constitutional value explicitly recognising it. The reluctance shown by the Conseil d’E´tat to initiate an effective control on the conferral of these authorisations proved actually more determinant than the Conseil Constitutionnel’s argumentation, as well as, ultimately, more illustrative of the French response to immigration. Clearly, the distribution of roles between the Conseil Constitutionnel and the Conseil d’E´tat characterises the French model. Although the Conseil Constitutionnel is in charge of verifying the conformity of the statutes with the Constitution, and is thus the jurisdiction which essentially formulates the official position vis-a`-vis immigration, the possibilities open to it for intervention are very limited[633]. In this sense, the case law of the Conseil d’E´tat, which is the materially competent court in the sphere of immigration, is ultimately the decisive one. Indeed, unlike Germany and Spain, France does not have a systematic catalogue of fundamental rights, but rather a series of historical texts from which the courts have gradually derived the recognition of rights considered as particularly relevant for the protection of the person. This approach prevails in French administrative law, which is a legal branch essentially created by the case law of the courts in their control of the administration. Its main perspective is thus an empirical one, determined by the practical need for protection of the individual vis-a`-vis the administration. In this sense, the limits set in French law on the administration derive from the judicial techniques of control of legality, and not so much from a systematic body of principles contained in the constitutional texts, as in Germany or Spain. Nevertheless, despite the common structure that conditions the courts’ reasoning in Germany and Spain, other elements individualise these cases, such as the type of arguments that motivate the judicial action. In the case of Germany, the insistent denial of the right of aliens to entry and permanence seems to go well beyond the traditional principle of the state’s sovereignty, which could instead more generally describe the case of Spain. As the German courts argue, the need to preserve the country’s identity ultimately justifies the rejection of uncontrolled arrivals of foreigners. This reasoning seemed indeed to explain the courts’ explicit legitimisation of the Gastarbeiter system of labour rotation, as well as, ultimately, of the forthright denial of Germany as an immigration country[634]. Such an official position is not to be found in France. The reception of immigration started in the last final decades of the nineteenth century because of a serious national labour force shortage, long before any other European country. Moreover, given that an intensive relationship also existed with the country’s former colonies, the continuous arrival of aliens was assumed in France, unlike in Germany, as a non controversial fact. Nevertheless, the 1973 oil crisis also signalised the beginning of a restrictive era in France. As in Germany, where this crisis led the government to put an end to the Gastarbeiter scheme, in France, the government also opposed outright any new

arrivals of aliens[635]. In this sense, although these countries departed from totally different positions, the possibility of a right of entry and permanence ended up being denied with the same resolution in both of them by their national courts. The case of Spain is different again. In contrast to both France and Germany, the recognition of the immigration phenomenon was made explicit in the normative texts much before its reality was actually felt in society. Given that the arrival of immigration to Spain has started only recently – traditionally, Spain being a country of emigration – the official reaction vis-a`-vis immigration can be interpreted as the result of intertwined and contradictory influences. The position adopted by the Spanish courts when denying the existence of a right of aliens to entry and permanence is a reflection of this combination. On the one hand, the rights-oriented trend imposed by the 1978 Constitution, as a reaction against the country’s immediate traumatic political past, has conditioned the courts’ reasoning. Following the constitutional text, the courts articulate their argumentation around the criterion of human dignity on which the classification of fundamental rights is clearly based since constitutional decision 107/1984[636]. However, although aliens are explicitly included in this classification, the exclusion of the right to entry and permanence is equally based on the human dignity criterion. On the other hand, since Spain was coming out of forty years of political isolation, and was then entering structures such as the European Union, the assumption by the Spanish courts of what has been defined here as the premise of precariousness in a way symbolises Spain’s incorporation into Western standards, Spain thus adopting the (immigration-restrictive) parameters in force then in the neighbouring countries. II. The confirmation of precariousness in the abstract analysis: adapting the national parameters When confronted with the state mechanisms to impede the stay of unwanted aliens in their territories, the courts proceed to the abstract analysis of such instruments. In this way, the analysis undertaken by the courts is of an abstract sort, focusing on the conformity of these mechanisms with the respective constitutional parameters, and according to the remedies foreseen for this purpose in each country. In order to preserve the general character of the constitutional principles, while at the same time legitimising their specific adaptation to the field of immigration, the courts are invariably led to a new formulation of both the existing means to grant the state’s right to control the immigration flows and the constitutional parameters. The result, though, is a new delimitation of these principles which sometimes forces to its limits the flexibility of the legal notion at issue, a situation which is justified by the courts on the grounds of the specificity of immigration. For instance, in the German decisions analysed in this respect, the Federal Constitutional Court was confronted with the constitutionality of the general clause of the 1965 Aliens Act, even if only indirectly[637]. The constitutional complaint lodged against an order of expulsion obliged the Court to analyse whether the system of deportation of aliens could in itself imply the violation of fundamental rights, the general interests of the German Federal Republic being the main criterion limiting the administrative action[638]. The Court declared the clause constitutional despite the vagueness and generality of its terms. It affirmed that the constitutional requirement of definiteness of the law (Bestimmtheitsgebot) could be considered to be respected when taking into consideration the particularity and complexity of the field of immigration. From this perspective, some interpreters of this decision have argued that the Court

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actually introduced a new Bestimmtheitsgebot for the field of immigration, since it accepted to reduce the general standard of definiteness of the law, on behalf of the specificity of this area. The declaration by the Conseil Constitutionnel of the constitutionality of the measures to expel aliens from the territory can be also analysed from this perspective. To a large extent, the reasoning of the Conseil concerned the notion of personal liberty, which results from the distribution of jurisdiction between the juge judiciaire and the juge administratif. As repeatedly stated by the Conseil Constitutionnel, since immigration represents a sphere of administrative prerogatives, the juge administratif is the competent court. In this way, although the case law of the Conseil progressively expanded the competence of the juge judiciaire in relation to personal liberty (on the grounds of Article 66 of the French Constitution), and in turn, the notion of personal liberty itself[639], the Conseil was forced to correct its previous case law[640]. In this way, the notion of personal liberty became compatible with the conferral of competence on the juge judiciaire, as well as with the possibility of restricting aliens’ personal freedom. The reasoning of the Tribunal Constitucional in the referral lodged against the 1985 Aliens Act is significant in this respect, concerning also personal freedom[641]. The acceptance by the Court of the important and ambivalent role granted to the administration in the internment of aliens also constrains the limits of fundamental principles such as the division of competence between the judiciary and the administration[642]. Though, unlike what occurred in France, since this construction did not explicitly give place to any new formulation of the existing categories, the Tribunal Constitucional seemed simply to be legitimising – as in Germany – weaker constitutional standards for the sphere of immigration. Moreover, the Court expressly referred to Article 5 ECHR in order to justify the deprivation of liberty foreseen for aliens in the Act, despite the universal character of the right to personal proclaimed by Article 17 of the Spanish Constitution and confirmed by the Tribunal Constitucional itself. From this perspective, the reference by the national courts to supranational texts, instead of reinforcing the protection of the rights of the person, in the sphere of immigration is actually used to impose criteria weaker than the ones enshrined in domestic norms. III. The realisation of the premise of precariousness in judicial practice: specific backgrounds for flexibility While a similarly wide margin of action is ultimately conferred on the respective administrations by the national courts, the ways through which they arrive to this material result are again distinct. As indicated when analysing individually the judicial implementation of the general clauses on public order, the backgrounds for the need for flexibility are different. For instance, in Germany, the reasoning of the courts is conditioned by the need to delimit the general clause of the 1965 Act. Nevertheless, although the Federal Constitutional Court had sustained that the judicial control of the administration would compensate for the vagueness of the general clause and would thus lead to a restriction of the notion of general interests of the German Federal Republic, no such restriction resulted from the decisions of the administrative courts in charge. The ultimate dependence of aliens’ entry and permanence on wide administrative prerogatives was not limited by the subsequent judicial intervention, the courts having accepted an enormous range of arguments under the notion of general interests. Ultimately, the need

for a wide margin of action was often consecrated by the courts by insisting on the particularity of the domain and, thus, on the administration’s need for flexibility[643]. Furthermore, the German courts have also tried to justify their approach to aliens by referring to supranational texts or case law, as with the Spanish Constitutional Court[644]. In fact, the references by the German courts to supranational instruments are not numerous and most of the time they are invoked in order to legitimise a restrictive response. For instance, in order to justify orders of expulsion on the grounds of arguments on general or special prevention, which normally concern the imposition of criminal and not administrative sanctions, the Federal Administrative Court has referred to the case law of the ECJ. On the basis of this Court’s case law, the Federal Administrative Court has sustained that only in relation to Community nationals is the use of such arguments illegitimate[645]. At the same time, the Court has rejected the precedence of international treaties over domestic law in cases where those treaties grant a better protection to aliens. For example, in relation to the Covenant signed between Germany and Greece, the Federal Administrative Court argued that the Covenant did not intend to leave without effect the 1965 Aliens Act and, specifically, the notion of national interests enshrined therein[646]. The ultimate reasoning of the French courts is very similar when refusing to restrict the notion of public order. In France, though, there is not a general clause in aliens law similar to the one contained in the 1965 German Aliens Act. The practical importance of the notion of public order is due in France to having defined the sphere of immigration as part of the police spe´ciale des e´trangers, which is subordinated to the preservation of public order. As in Germany, the French administrative courts refused initially to censure the generality and vagueness with which the administration implemented this clause, the status of aliens ultimately depending on it. This notwithstanding, in France, in contrast again to Germany, the actual conferral on the administration of such wide prerogatives was less due to the variety of administrative arguments accepted by the courts than to their refusal to control substantively the use of the notion of public order. Although the French administrative courts had admitted the possibility of a minimal control, they proved very reluctant to start verifying the existence of a threat to public order, leaving it up to the administration to estimate whether the specific circumstances justified or not that consideration in each case[647]. Also, as in Germany and Spain, the reference to supranational texts by the French case law has been used to corroborate restrictive positions. For instance, in the Adjim decision of 19 June 1992, the Conseil d’E´tat argued that the very text of Article 2 of the Protocol No. 4 ECHR, which recognises freedom of movement to aliens lawfully residing in the territory of the states, foresees the possibility of restrictions to this freedom on behalf of public order[648]. Likewise, the Conseil d’E´tat has also referred to the ECtHR in order to confirm the French definition of the orders of expulsion as measures aiming at the preservation of public order and, as such, not subject to the guarantees foreseen in Articles 6 or 7 ECHR, which regulate the imposition of criminal and civil sanctions only[649]. Spain does not differ from this general scheme either. As in France or Germany, a broad notion of public order emerges when implementing aliens law, thereby conferring on the administration a very wide margin of action vis-a`-vis aliens. However, unlike in France and Germany, the use by the administration of the notion of public order does not occur in the framework of a general structure on aliens. The legitimisation of the vague use of such a clause is rather the unsystematic reflection of

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the country’s social perception of immigration, reluctant to implement in the field of immigration principles already consolidated in other areas and which would restrict the use of such a notion of public order. The chapter on Spain illustrates the impact on the courts of this underlying social perception as regards the judicial suspension of administrative acts[650], or the prohibition of racial discrimination[651].

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B. Emergent rights: the impact of the domestic guarantees I. The introduction of procedural limits to precariousness: responses to different needs for protection According to the conclusions presented in chapter 4, the consequences involved in the execution of expulsions led the courts to introduce general principles that mitigated their impact on aliens. Essentially, these principles are reducible to the same fundamental schemes in each country, resulting as well in very similar levels of protection by offering preventive means of reaction against the administration. As in the previous sections, though, the specific reasoning leading to those similar results is often different. In the final analysis, it needs to be interpreted in light of the legal general schemes in force in each country, as well as, ultimately, of the concrete circumstances determinant of the degree and type of protection needed. For instance, in Germany, although the Federal Constitutional Court had declared the constitutionality of the general clause of the 1965 Aliens Act, the confrontation with a concrete situation of immediate expulsion prompted the introduction by the Court of certain constitutional principles. In this indirect way, the Court ended up requiring from the administration the restriction of the notion of the general interests of the German Federal Republic. It thus started delimiting the wide margin that the general clause seemed to establish, and introduced the constitutional reasoning in the sphere of immigration. Specifically, the Federal Constitutional Court did this through the principles of proportionality and balancing of interests – as direct expression of the rule of law – as well as through the principle of judicial suspension, which, as the Court proclaimed, is direct expression of the right to due process, recognised in Article 19.4 BL. In this way, the Court extended to the immigration sphere a fundamental and distinctive principle of German administrative law which had been overturned in practice – that is, the suspensive effect inherent in administrative judicial review. Ultimately, the proclamation of the full validity of this principle represented a limit to the exceptionality which had been characterising the domain of immigration. The predominant reasoning among the French courts in the conferral of a first protection on aliens is different. Although the idea of proportionality does offer the background from which the courts intervene, the determinant element is not so much the implementation in the sphere of immigration of the body of constitutional principles from which this sphere had been excluded – as it was the case in Germany – but the extension of the techniques of control of the administration which the courts had developed in other areas. Indeed, since French administrative law is essentially created by the courts, what is fundamental are the mechanisms induced by them to ensure the respect of the principle of legality, rather than the systematic deduction of a body of norms from the Constitution. A clear example of this is the introduction by the administrative courts of the possibility of interim relief in the form of suspension. In contrast to German administrative law, where the action of the administration is directly limited by the guarantees on fundamental rights, French administrative law is instead essentially

oriented towards the effectiveness of the administration. The self-executive power of the administration thus signifies in French law that the stay of administrative orders is only the exception to the general rule. In the case law of the courts, the suspension of the administrative acts had nevertheless become an important modality of interim relief. However, this possibility proved particularly controversial in especially sensitive areas such as the police spe´ciale des e´trangers, where the protection of public order is at issue. In this sense, the decision of the Conseil d’E´tat of 23 July 1974, Gil Ortega, represented a rupture with the Conseil’s case law. The Conseil showed a new position concerning expulsions by affirming the right to demand the judicial suspension of administrative measures, even if these belong to the sphere of public order[652]. Instead, in Spain, the judicial extension of protection to aliens is carried out as in Germany, following the structure of constitutional principles. An example of this is the proclamation, in questions concerning immigration, of the universal character of the right to due process and, specifically, of the right to suspension of administrative acts. Although administrative law in Spain, as in France, is based on the idea of the effectiveness of the administration, the judicial suspension of the administrative acts is nonetheless clearly enshrined in the law. In this sense, the suppression of this possibility by the 1985 Aliens Act represented exempting aliens from the general rules. The reaction of the Tribunal Constitucional was clear, declaring contrary to the Constitution the derogation of this form of interim relief and, thus, as with the German and French courts, ultimately rejecting the exceptionality conferred on this domain[653]. However, in Spain, in contrast to both Germany and France, the type of principles which are introduced in the sphere of immigration reveals often a situation which is not specific to immigration only. In the final analysis, it indicates the special features of Spain as a country assuming gradually constitutional and democratic parameters. In this sense, the intervention by the Spanish courts in the sphere of immigration did not only signify the extension to aliens of the principles otherwise generally implemented – as it was the case in Germany or France – but also the imposition of the principles proclaimed by the 1978 Constitution in the more general sphere of administrative sanctions. In this way, the constitutional guarantees introduced then by the Spanish courts concerned the most basic principles such as the right of hearing, the presumption of innocence, or the principle of legality in the imposition of administrative sanctions[654]. The mechanisms that the new constitutional framework offered to the Spanish courts were crucial in this respect, making a systematic and progressive expansion of the reasoning inherent in it to all the legal areas possible, as well as the assumption of the standards already in force in other constitutional orders. Article 10.2 of the Constitution was particularly relevant from this perspective, by establishing a direct reference to international treaties and supranational case law for the interpretation of fundamental rights[655]. In Spanish constitutional case law it is possible to observe how this mechanism enables a direct reception of the doctrine of the ECtHR and, specifically, the consolidation of procedural guarantees which were less evident in Spain than in other countries. For instance, in the decisions of 19 April 1988 and 20 June 1994[656], the Tribunal Constitucional affirmed the right of defence as part of the right to a fair trial, and the right to an interpreter as particularly relevant in aliens law. Instead of simply grounding its decision on Article 24.2 of the Constitution[657], the Court explicitly referred to the principles set out by the ECtHR in relation to Article 5 ECHR and,

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specifically, to the right to an interpreter, which the ECtHR considers necessary in order to ensure an equality between the parties and, more generally, the right to a fair trial[658]. This decision of the ECtHR referred to by the Spanish Tribunal Constitucional is one of the few cases in which Germany has been condemned by the Strasbourg Court. German law has indeed a very complete system of guarantees, whereby the national courts tend to refer to their own domestic legal texts and to the case law of the Federal Constitutional Court, instead of the case law of the ECtHR[659]. As with the Conseil Constitutionnel, the Federal Constitutional Court is bound by very strict rules of procedure: a law can be declared null and void solely on the basis of the Federal Constitution. This limits the impact of the ECHR in Germany, although the administrative courts should apply and respect it. Nevertheless, this situation has changed to a certain extent throughout the years. The Federal Constitutional Court itself has declared, in an important decision dated 26 March 1987, that when interpreting the BL, the ECHR and the case law which ensues therefrom have to be considered, provided that this does not lead to a limitation or reduction of the level of protection under the BL. Ordinary statues are thus to be interpreted and applied in harmony with international obligations of the Federal Republic of Germany, even when enacted later than an international treaty in force[660]. In any case, the situation created by Article 10.2 of the Spanish Constitution is completely different, since this provision expressly encourages the reception of the supranational doctrine. This provision represents an instrument with no equivalent in comparative law which, beyond enabling the development of the ECHR in Spain, also allows for an interaction between the ECtHR and the national courts which could lead to new ways for further progress of the ECHR in general. In a country such as Spain entering a democratic and constitutional system, Article 10.2 revealed itself as a fundamental instrument for ensuring alignment with the standards already consolidated in neighbouring countries[661]. In this sense, the reference by the Tribunal Constitucional to the ECtHR’s case law, apart from being the direct result of Article 10.2, represents a way to legitimise its own decisions in the domestic sphere, as well as before the international community. This state of affairs contrasts with the reluctance shown by the French or German courts to refer explicitly to supranational texts. Ultimately, it shows the different role played by the ECHR in each country according to their respective political and social circumstances[662]. II. The consolidation of substantive limits to precariousness: conferring fundamental rights according to distinct legal structures and immigration realities In Germany, France and Spain, the extension to aliens of fundamental rights actually defined a constitutional status vis-a`-vis the public authorities. Yet, the specific rights recognised, as well as the way in which they are conferred, are different again according to the distinct circumstances in each country and the respective legal structures. For instance, in Germany, the reasoning of the Federal Constitutional Court was articulated around Article 2.1 BL, which recognises everybody’s right to free development of his or her personality, this representing a general and abstract constitutional ground for the construction of an aliens’ status. In the 1957 Elfes case, the Court had interpreted this right as a general freedom protecting any human activity not covered by a special guarantee. In this way, the Court established a complete system of human rights protection and judicial review[663]. Whenever a government

activity interferes with an act or behaviour of individuals not mentioned in some special guarantee, the Court can review it under Article 2.1. According to this reasoning, the BL provides a comprehensive system of protection of human rights based on the principle of human dignity enshrined in Article 1[664], which understands human rights not only as subjective rights but as objective principles as well. In their capacity as objectives, human rights penetrate the whole legal and social order, obliging the state to adopt certain action in order to protect human rights or to give real effect to them[665]. Instead, in France, the recognition of fundamental rights to aliens seems to emerge from a more practical and technical approach. In this sense, the judicial control of the administration in the sphere of family protection expanded the intervention of the courts to the extent of materially end up defining areas of rights. Likewise, the division of competence between the juge judiciaire and the juge administratif has characterised the process of recognition of the right of aliens to personal liberty. The perspective adopted by the Spanish courts is a mixed one, sharing some of the features of both the German and the French systems. Since Spain entered democratic and constitutional structures much later than these countries, the 1978 Constitution reflects, to a large extent, the constitutional experience of other Western countries over the years. On the one hand, Spain conferred upon itself a comprehensive and systematic constitutional structure which in many respects reproduces the German constitutional scheme and guarantees. It essentially adopts the conceptualisation underlying the German BL and constitutional case law of fundamental rights as objective principles, which in turn requires an interpretation of the constitutional system as a unity[666]. Though, in contrast to the essential character of the list of rights of the German BL, the Spanish Constitution contains a very comprehensive catalogue of fundamental rights which also refers to aliens. Unlike both the German and the French constitutional texts, which exclusively mention aliens in relation to the right of asylum, Article 13.1 of the Spanish Constitution declares aliens holders of fundamental rights. Nevertheless the achievement of a real status vis-a`-vis the administration has only occurred through the case law concerning this provision. In this sense, the practical dimension has been also determinant in the reasoning of the Spanish courts. As in France, the right of aliens to personal freedom has been fundamental in this respect, as the right most affected by measures of expulsion. The experience and attitude vis-a`-vis immigration also condition the kind of rights finally conferred on aliens. In this way, the right to family protection played a fundamental role in Germany and France, but not in Spain, where the arrival of immigration has only started recently. Indeed, since immigration was still not an issue in Spain at the time of the 1973 oil crisis, when family protection practically became the only mechanism to assure the permanence of aliens in other countries, the Spanish courts have not had to deal so much with that right so far. They have only recently begun to be confronted with this type of question, once immigration is developing into family immigration and, thus, achieving the dimensions and features which have been long known in neighbouring countries[667]. Still, the definition of this right is different in France and Germany, according to their specific understanding of immigration or, even, of national identity. Whereas in Germany, the right of the German partner represented a mechanism to start extending protection to aliens, albeit indirectly, in France, the right to family protection was simply conferred on the grounds of the universal character of this right, as declared by

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the Preamble of the 1946 Constitution (‘‘La Nation assure a` l’individu et a` la famille les conditions ne´cessaires a` leur de´veloppement.’’)[668]. The role played by the supranational case law as regards family protection is also different in these two systems. It has been determinant in France, although a right to family reunification had been derived from the domestic sources, the Conseil d’E´tat having consecrated very early on the right to lead a normal family life in the form of a principe ge´ne´ral du droit[669]. The courts refused to implement this principle in relation to expulsions, where the protection of public order was at issue. The reasoning of the French courts appeared increasingly questionable in light of the expansive interpretation of Article 8 of the Convention by the ECtHR as regards expulsions[670]. In reality, though, the divergent position of the French courts was due to the fact that they could not refer directly to Article 8 since, according to the French technique of the ‘‘screen-law’’, the courts were not entitled to implement an international norm when there was a domestic norm on the same question. For the first time in 1989 (in the Nicolo decision), the Conseil d’E´tat authorised the direct control by the courts of the respect of international treaties. In the domain of immigration, it was in the Beldjoudi decision that the Conseil d’E´tat accepted to implement Article 8[671]. The following case law of the Conseil d’E´tat in the sphere of removal of aliens is a further development of this decision, this provision playing from then on a fundamental role in the French judicial construction of aliens’ protection[672]. In the final analysis, the important obstacles existing in France for the reception of the supranational influence were ultimately overcome due to the own domestic deficiencies[673]. In a way, the reference to the ECtHR’s case law compensated for the lack of constitutional consecration of the value of this right by the Conseil Constitutionnel[674]. In effect, the absence of a systematic structure of guarantees for the protection of fundamental rights rendered the domestic structures finally permeable to the more protective supranational case law[675]. The French courts did this, though, without renouncing their own legal structures[676], thus integrating the supranational standards in their control of the administrative action[677]. As repeatedly stated, the impact of the supranational case law was not so important in Germany, since this country already had a comprehensive system of protection of human rights[678]. Though, in the sphere of family protection, the influence of the ECHR is also to be noticed. While it is normally considered that Article 6 BL grants the same level of protection as Article 8 of the Convention, in so far as the conferral of a right of residence is concerned, the ECHR assumes an important role in the context of national measures taken to end a period of residence for reason of breach of criminal law. The divergence between national and supranational law appears particularly evident in the sphere of second-generation immigrants[679]. The case of Mehmet is paradigmatic in this respect, illustrating the different criteria underlying the legal assessment of an expulsion order against minor foreigners who have been brought up in Germany. Specifically, it evidences the more restrictive approach of the German case law as opposed to the Strasbourg court. The case of Mehmet – a Turkish serial offender, aged only fourteen at the time, and expelled alone to Turkey, leaving his parents behind – was very controversial in Germany. The German courts had legitimised this expulsion by accepting that his presence represented a severe disruption of public safety and order and arguing that no violation of Article 6 BL, nor of Article 8 ECHR, was committed because the youth would have been accompanied to Turkey by his parents, who were indirectly held responsible for the criminal record of their child and, thus, also expelled[680]. It has been only in a

recent decision of 16 July 2002[681], that the Federal Administrative Court has authorised the return of Mehmet to Germany, arguing in favour of the right to apply for a new permit of residence, and ultimately thus censuring a line of case law whose conformity with the European Convention was doubtful[682]. As the Court argued, after Mehmet became ‘‘criminally liable’’, he was convicted for only one offence, which was not so serious as to justify an interference with his constitutional right to live together with his family. Likewise, as indicated above, the right to personal freedom plays a more determinant role in France and Spain than in Germany, the French and Spanish reasoning being, to a greater extent, focused on the material means to remove aliens from the territory[683]. Yet, differences between France and Spain are again to be observed. Whereas in France, the courts concentrate on the jurisdictional division of competence which results affected by these mechanisms[684], in Spain, where such a division does not exist, the Tribunal Constitucional delimited instead the judicial and the administrative roles as a fundamental aspect in the protection of this right[685]. III. Questioning the premise of precariousness: the convergence in the courts’ reasoning Even if the levels of protection achieved in Spain are actually lower than the ones in France and Germany, the reasoning followed by the courts indicate a general trend towards the same material results. That is, the limitation of the administrative prerogatives in the sphere of immigration, to the extent of imposing positive obligations on the state as regards aliens’ entry and permanence. Nevertheless, in contrast to the preceding sections where the convergence between the national courts was reflected in the material results only, in this case, important similarities are already evident before the achievement of these results. Indeed, although the courts’ reasoning is also conditioned here by their own national premises, these traditional differences are increasingly nuanced. Ultimately, this later stage in the construction of aliens’ constitutional status differentiates substantially from the previous ones. The idea of emergence is clearer here, since the material conferral of the right to permanence and entry is the result of an essentially indirect and, to a certain extent, non-deliberate judicial process. The whole emergence of a status of aliens is in a broad sense so, the constitutional or administrative principles referred by the courts achieving, in practice, autonomy with respect to the courts’ initial intention. However, in contrast to the preceding phases, the final result seems here to go far beyond what was expected by the same courts. In this sense, what is sometimes regarded as an isolated response to a specific situation, results finally in the de facto recognition of a right to entry and permanence. In effect, the protection thus granted is not officially recognised by the courts as a general right. Simply, they try to justify their intervention on the need to react to certain material circumstances, whereas in the first and later stage of protection of aliens, the courts explicitly justified the reasons and consequences of their decisions. This notwithstanding, even if in principle foreseen for particular cases only, the very fact of this protection indicates the ongoing and fundamental transformation of immigration law. A possible explanation for the actual convergence between the national courts can perhaps be found in the sociological impact of immigration. From this perspective, the assumption of the reality of immigration in the host societies would be what leads the courts to the material imposition of limits on the administration. In this sense, the years

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and type of experience of each country vis-a`-vis immigration could also account for the specific features emerging from this comparative analysis. It might for instance explain the differences between Spain and the other two countries in the degree of protection finally conferred, which is minor in Spain despite the express recognition by the Spanish Constitution of a status for aliens and its very complete system of protection of fundamental rights. Likewise, a sociological assessment might shed light on the final similarities which exist between France and Germany in spite of their very different official starting positions vis-a`-vis immigration and legal mechanisms of protection of fundamental rights. Indeed, the reasoning followed by the respective national courts is ultimately more similar than initially expected. In Germany, where the general and abstract basis of Article 2.1 BL seemed to offer a ground with an unlimited potentiality for the recognition of a constitutional status for aliens, the Federal Constitutional Court ended up ruling out this possibility[686]. Instead, its intervention in concrete and clearly delimited areas such as family protection gave place in practice to a right to entry and permanence[687]. The importance of the practical dimension had been, by contrast, always clear in French administrative law, where the principle of legality is characterised by its empirical approach. The fulfilment of positive obligations was required by the courts from the administration, to the extent of necessitating conferral of the right to entry and permanence, as in Germany, ultimately[688]. Nevertheless, an abstract dimension also underlies the reasoning of the French courts. To a large extent, the judicial control of legality is based on a series of principles and fundamental rights which are assumed by the courts to be antecedent to administrative prerogatives. The recognition by the Conseil d’E´tat of the universal right to lead a normal family life is paradigmatic in this respect[689]. In this sense, the actual approach of the French courts is also of a mixed nature. Even if the protection recognised relies on the control of legality, the French administrative jurisdiction also grounds its intervention on general principles – the principes ge´ne´raux du droit. These represent the main unwritten source of French administrative law, which are enunciated and developed by the administrative judge, and bind the administration. From this perspective, although the role of the Conseil Constitutionnel is minor with respect to the one played by the German and the Spanish Constitutional Courts, this is to a certain extent compensated for by the creative role of the Conseil d’E´tat, which has no equivalent in Germany or Spain[690]. As opposed to the French jurisdictional division between the juge judiciaire and the juge administratif, in both Spain and Germany, the administrative courts form part of a single jurisdictional order and are hierarchically subordinated to the criteria set by the Constitutional Court[691]. As seen throughout this research, although the German and Spanish administrative courts have their own margin of appreciation and initiative, they ultimately follow the directives set by their respective Constitutional Courts. The situation in France is far less apparent[692]. In reality, in this country, the general principles proclaimed by the courts in the sphere of immigration are the result of the combined participation of the main competent jurisdictions, each of them through their own mechanisms and categories of intervention. That is, the principes fondamentaux reconnus par les lois de la Re´publique and the principes ge´ne´raux du droit. There exists an increasing interaction between these jurisdictions, which leads to progressively interlaced areas of competence[693].

Finally, in Spain, where the courts have not gone as far as in Germany and France in their conferral of protection on aliens, the evolution in the reasoning of the Spanish courts makes it nevertheless possible to foresee future developments in this sense. As indicated in the previous section, the perspective adopted by the Spanish courts is actually a combination of different elements. Despite the systematic and abstract criteria of the Spanish constitutional order, the final judicial reasoning is to a large extent also prompted by circumstantial considerations. Thus, although the Tribunal Constitucional framed the extension to aliens of freedom of movement in the tripartite classification on fundamental rights[694], the actual conferral of this right was due to a technical and pragmatic question. That is, the necessity to give access to aliens to the judicial guarantee foreseen in the 62/1978 Act, since this is reserved to fundamental rights only[695]. This pragmatic approach has led to unexpected results in the three countries considered in this study. Evidence of this is for instance to be noted in the integration of supranational mechanisms such as Article 8 ECHR, this integration has sometimes resulted in new protection standards, higher than the supranational ones[696]. For example, in the sphere of family reunification, once the national courts have assumed the Strasbourg case law, the criteria ultimately set by these courts can actually be more protective than the ones defined by the ECtHR itself[697]. Specifically, in France, the development of the principle of legality by the Conseil d’E´tat has even led the Court to transcend the issue of national boundaries, by introducing a control in the supranational sphere. Fundamental in this respect are two decisions of the Conseil d’E´tat, of 9 June 1999, in relation to the application in France of the Schengen Implementation Agreement and the French national implementing decree as regards challenges to the refusal of visas to third-country nationals on the basis of notification of individual’s details on the Schengen Information System (SIS)[698]. This System contains information entered by Schengen Contracting Parties on persons whose admission to the territory of the Schengen states is to be refused. In both cases, the Court annulled the decisions to refuse visas, ultimately thus inaugurating new methods and standards of protection, not only in France but also, and more importantly, in the rest of the countries party to the Schengen Convention[699]. The two Schengen treaties have now become part of European Community law and are thus subject to the ECJ’s jurisdiction. Thus, until its incorporation into the EC Treaty, this supranational judicial control was lacking, the role played by the national courts being then determinant. The enactment of national law giving effect to the Schengen acquis gave the national courts regard not just to the implementing national measures but also to the acquis itself. At issue in these decisions was the right of the individual to information regarding his or her report on the SIS. With these decisions, the Conseil initiated the process of delimitation of this Schengen instrument, by requiring from the authorities to provide reasons for the report by another Member State of an individual to the SIS. In this sense, the judicial control over this System necessarily exceeds the national boundaries of the national court, the Conseil requiring from the national administration to test the lawfulness of a foreign administrative act affecting civil liberties. In sum, the ultimately relevant aspect of these decisions is not so much the specific obligation imposed on the administration – and which in the reasoning of the Conseil d’E´tat remained uncertain – but, rather, the tacit affirmation by the Conseil of the possibility of judicial control of the administrative act, also thus beyond the national

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boundaries. In the final analysis, the reasoning of the Conseil d’E´tat is an implicit signal to the ECJ – and, more generally, to the rest of Community institutions – on the need to assure the judicial protection of the right of individuals to control information held about them and its use to exclude or expel them from the Schengen territory. In case the ECJ does not protect civil liberties satisfactorily, the Conseil d’E´tat has affirmed the legitimacy of the national courts to ensure respect for the rights of those within their jurisdiction[700]. However, the reasoning of the courts does not always imply an improvement of the standards of protection. On some occasions, the national courts have proved more restrictive than the ECtHR, accusing this Court of forcing illegitimately the limits of the ECHR. The reaction of the German Federal Administrative Court to the controversial decision of the ECtHR, D. v. UK[701], is paradigmatic in this respect[702]. As the German Court argued, the reasoning of the Strasbourg Court violated the limits of Article 3 ECHR and, more generally, of the systematic structure of the Convention, interfering with the states’ sovereignty over their national boundaries. Ultimately, in the view of the Federal Administrative Court, the adoption of such a new criterion, which affects the control of the immigration flows, does not correspond to the courts, but to the states’ political powers, which are the only ones democratically legitimated for that purpose[703]. In the final analysis, the ultimate outcome from the interaction between the different competent jurisdictions can only be viewed case by case[704]. As in the decisions on the Schengen Implementation Agreement, the domestic judicial mechanisms of review may indirectly reactivate the process of protection of aliens. Ultimately, they might give real effect to an interactive jurisdictional system of protection of fundamental rights which results from the different – national and supranational – normative frameworks[705]. However, this interaction may also give place to less encouraging results. As in the German case law on Article 3 ECHR, the national courts may react against the more protective supranational standards[706]. In the final analysis, the margin left to the courts is determined by the degree of tolerance that society is ready to admit. As will be argued in the following chapter, this threshold is indeed what determines a more or less protective reasoning by the courts, especially, thus, in a sphere such as immigration where no clear social consensus yet exists.

7. Judge-made law in the protection of fundamental rights This chapter represents the final stage in the deconstruction of aliens’ constitutional status; it introduces the analysis of a further and last element in the judicial definition of this status. Having examined the role of the supranational case law (in chapter 5) and of the domestic legal mechanisms of protection of fundamental rights (in chapter 6), as possible determinants of the emergence of a body of rights of aliens in each of the countries considered in this study, this chapter intends to focus on the instrument through which these other factors achieve material impact – that is, the judicial instrument itself. In this sense, the aim of this chapter is to reflect on the extent to which this process is due to the nature of the actor in charge of giving material form to it – the courts – irrespective, thus, of both the supranational and the national dimension of the phenomenon, which have been instead analysed in the preceding chapters. Essentially, after articulating this study through the decisions of the courts, the idea of this chapter is to proceed to some final reflections on the role of this public authority. Specifically, the question ultimately posed is whether apart from giving material translation to the different relevant influences in this phenomenon, the courts can, as such, be also regarded as one of its causes, on the grounds of the specific features inherent in the judicial function and of the particular characteristics of a phenomenon as immigration. It is indeed the combination of these two elements which renders the judiciary an instrument with an extraordinary potentiality. From this perspective, the analysis of the ultimate significance and role of the courts in this process also represents the conclusion to this research. In the form of some closing remarks, it continues the interpretation of the results obtained in this comparative study, and indirectly, thus, re-evaluates the analysis done in the two preceding chapters. Essentially, as indicated in chapter 4, the outcome of this comparison is the observation of a trend towards the convergence of the different national courts in the final protection conferred, while at the same time they follow their own specific ways of reasoning and procedure for the achievement of these results. Chapter 5 in effect initiated the deconstruction of the conclusions thus obtained. It sought to offer a possible explanation for this convergence by analysing the general trends set by the supranational courts, in order, ultimately, to see whether this case law could be in itself regarded as determinant of the protection of aliens. Chapter 6 proceeded with this analysis, concentrating however on the differences in the reasoning followed by the courts. By examining the internal legal mechanisms of protection of fundamental rights on which the courts ground their reasoning, it was ultimately intended to see whether the protection of aliens departed indeed from the standard domestic basis and whether that national basis was actually sufficient for this purpose. If this was not the case, it was then necessary to investigate the role played by the supranational mechanisms as a completion of this protection and, thus, as a factor of uniformisation of the respective national protective trends. This last chapter resumes this latter idea. Apart from presenting a further cause of the conferral of rights on aliens, it ultimately tries to offer an explanation for the fact that the final protection of aliens is similar in Germany, France and Spain although the

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general legal structures, as well as the attitude and experience in the sphere of immigration, are different in each of these countries. What is ultimately sought in this research is an analysis of the various phenomena outlined in the book in relation to the recognition of protection for aliens. That is, on the one hand, the increasing protection of aliens in spite of the evermore restrictive approach of the states vis-a`-vis immigration; on the other, the courts’ growing importance in spheres where the question ultimately posed is not legal but political, which has indeed raised a serious debate on the implications and legitimacy of expansive judicial prerogatives. In this sense, besides the courts representing an emerging normative power in evolving spheres such as immigration where no clear legal response still exists, according to the underlying premise of this research, they also offer the analytical instrument with which to articulate, along one and the same line, the different arguments and theories existing in this field. A. Emergent rights: the emergence of the judicial instrument in the absence of legal criteria Inasmuch as the implementation of the law by the courts implies a reformulation of the legal norm in order to adapt it to the concrete material context, the courts participate in the creation of that norm. The courts depart in their intervention from given legislative criteria and administrative practice, but often adjust their content[707]. Though, in the particular case of immigration, the role of the judiciary as the forum for elaboration of a normative response is especially distinct. In light of the specific circumstances of such a phenomenon, the legislative instrument proved increasingly insufficient. It appeared too rigid to move along the quick transformations involved in the reception of immigration and too weak in a highly politicised domain as this one is. In effect, it delegated to the executive the response to this phenomenon. In this context, the flexibility and strength of the judiciary vis-a`-vis the individual case offered instead the means to develop progressively new criteria and at the same time circumvent the political pressures involved in their discussion. Ultimately, the appearance of neutrality that legitimises the intervention of the courts represented the instrument to approach this politically sensitive sphere[708]. It is therefore the judge who remedied the lack of precise and definitive legal solutions. Departing from a given – constitutional, legislative or even regulatory – premise, the courts specified, nuanced and reformulated progressively those first normative responses, to the extent of establishing these rights of the alien as absolute. Until the intervention of the courts, those rights had been left to the temporary and discretionary character of the administrative authority[709]. In a way, the traditional division of powers was thus altered, insofar as the courts represented the principal actor in this major process, reformulating or, even, anticipating, the legislative answer, and going thus beyond its in principle more limited sphere of competence. Ultimately, an unsystematic and spontaneous normative process was in this way revealed as inherent in a phenomenon such as immigration where no social consensus still exists. In the final analysis, though, this process also signalises the unclear boundaries between law and politics, from which the courts emerge with new and expansive competence, the judiciary being thus progressively consecrated as the space of de facto confluence of these two dimensions[710]. In this sense, it could ultimately be argued that spheres such as immigration, apart from representing an exception to the traditional division of powers, rather announce an incipient general trend towards

materially conferring increasing prerogatives on the judiciary. They reveal, in this way, the progressive entanglement between the different competence areas. This is in fact the main polemic raised with the creation, after the Second World War, of the constitutional courts in Europe[711]. The introduction of this type of jurisdiction, beyond signifying the conferral of increasing competence on the courts, actually represents the creation of a body outside the strict limits of the judiciary; that is, a body directly in charge of ensuring the principles set in the constitution and, therefore, of controlling the legislator. Ultimately, it means the introduction of a new way of ruling, in which the legislative power no longer holds the predominant role that it had traditionally possessed[712]. The term constitutionalisation denotes this transformation. According to the theorisation carried out by the legal scholarship of this phenomenon, constitutionalisation would represent the increasing expansion of constitutional justice as a further stage in the evolution of constitutionalism. Beyond the traditional schemes of nineteenth century constitutionalism, which was fundamentally based on the organisation of political power, the setting up of its limits and the consequent sphere of freedom thus granted to the individual, modern constitutionalism now places this individual at the centre of its aim and interest. The protection of the rights of the person thus becomes the guideline of modern constitutions, all of which now incorporate a catalogue of fundamental rights. As implied in the very term designating this movement, the new constitutional principles have now a different reach and dimension, going beyond the strict limits of the sole legal discipline of constitutional law, and penetrating those legal areas relevant to human dignity. The already existing rights thus become constitutional rights – that is, limits that cannot be transgressed, not even by the law itself. Constitutionalisation, therefore, also, and more fundamentally, implies the reorganisation, around these new principles, of the rest of the legal order; it subordinates the legal system and the traditional organisation of political powers to a new reasoning[713]. In this context, constitutional courts arise as the key instrument in the realisation of the new framework. They give real effect to the principle of normative supremacy of the constitution by imposing the respect of these principles on the rest of public authorities. In this sense, the pretension in Europe of avoiding certain aspects of the American constitutional model did not succeed, such as a non-rigorous separation of powers, which in America is provoked by the determinant role of the Supreme Court in the control of constitutionality[714]. Against Kelsen’s original conception, which argued that constitutional courts should be denied jurisdiction over fundamental rights to ensure precisely that judicial and legislative functions remain as separate as possible[715], constitutional courts in Europe were finally conferred this task[716]. Essentially, this has had a two-fold effect. It has signified, on the one hand, the politicisation of the judiciary as the result of involving the courts in the creation of the law and, on the other, the judicialisation of politics because of the new reasoning that the mechanism of constitutional review imposes on the legislator[717]. It is a phenomenon, ultimately, that should have its impact on the definition of the rights of the aliens, precisely because of their condition of humanity. In this sense, immigration somehow tests the reality and effectiveness of the alleged expansion of the principles of protection of the person, as well as the related international discourse of universality of human rights. Although the universal character of many of these rights is often proclaimed by the constitutional texts themselves, it is only with the intervention of the courts that it achieves real effect. Essentially, according to this

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theoretical perspective, the law, through the case law of the courts, and in cases of lack of protection, gives shape and content to that abstract movement of constitutionalisation. The impact of the courts in the sphere of immigration is precisely what this study has sought to illustrate. That is, the type of judicial protection conferred on aliens in the absence of clear legal criteria and merely, thus, on the grounds of their human condition. Although the conferral of first entry and permanence permits is traditionally considered to be the direct expression of the states’ sovereign and discretionary prerogatives, and that, moreover, a fundamentally restrictive trend prevails today in relation to this question, major alterations have been introduced through the case law, even if only indirectly and gradually. In this way, beyond the analytical conceptualisation given to this phenomenon, the term ‘emergent rights’ used in this study, has tried to express this idea. Regardless, thus, of whether the protection finally conferred is abstractly interpreted as part of the movement of constitutionalisation or, simply, regarded as the direct result of the courts’ normal activity (i.e. judicial review) this category has tried to illustrate the derivation by the courts of rights for aliens, directly from the grounds of the legal system, and in spite of the legal or administrative norms that had often already offered a regulation. These are rights, therefore, that emerge, since they do not find their source and justification in any parliamentary text, as orthodox legal reasoning would demand. Simply, they derive from the implementation by the courts of the key principles of protection of fundamental rights. They emerge, ultimately, since they originate in the conflict between the law and the judge. This tendency firstly reveals itself in the setting upof limits concerning the capacity of the state to put into effect the so-called premise of precariousness, and by secondly questioning the very legitimacy of the premise itself. In this sense, the term emergence used in this research designates the active role played by the courts in the conferral of a protection which is not expressly foreseen in legal texts. Above all, though, this term indicates that the fundamental principles of the legal orders are an ultimately determinant cause of this process of protection. Although these principles are initially activated by the courts, they end up achieving autonomy with respect to the judicial actors and practically escape from their control. They emerge from the grounds of the legal order, in their implementation by the courts, but going sometimes even beyond that expressly intended by these courts. Actually, according to the so-called phenomenon of constitutionalisation, not just constitutional courts participate in this phenomenon. Although they are the ones principally in charge of assuring, or even promoting, the expansion of the constitutional principles, the other jurisdictions are also involved in this process. The penetration of the constitutional reasoning in all legal areas and actors in charge is indeed the ultimate aspect of this phenomenon. As observed in this comparative study, the constitutional courts have not been the ultimate determinant courts to carry out the extension of protection to aliens. According to the respective national legal structures in Germany, France and Spain, the different jurisdictional authorities have played a greater or lesser role. Whereas in Germany, for instance, the Federal Constitutional Court has played a major role in the emergence of a constitutional status for aliens, and the Federal Administrative Court has instead represented a more cautious and conservative approach[718], the distribution of roles in Spain is different. Although the Spanish Constitutional Court has, like the German Federal Constitutional Court, far-reaching competence, the

fundamental reforms concerning aliens have been often initiated by the Tribunal Supremo, the Tribunal Constitucional having simply confirmed them at the constitutional level. Even clearer in this respect is the case of France, where the Conseil Constitutionnel has by no means the same significance as the German Federal Constitutional Court or the Spanish Tribunal Constitucional, having instead very limited possibilities of intervention[719]. The conferral of protection on aliens in France has been a process essentially carried out by the Conseil d’E´tat. As consistently demonstrated throughout this work, French administrative law is essentially a case law-created legal branch. In this sense, the administrative courts have progressively developed principles in the sphere of immigration as they would normally do in other areas. The particularity of this sphere is, however, the fundamental role played by the courts in setting up limits to the prevailing exceptionality, as well as the high political sensitivity of much of the questions concerned. The Conseil Constitutionnel has in fact had numerous occasions to intervene in this domain, since consensus between the political parties is not easily reached and many of the reforms undertaken – according to the oscillations of government party composition – have been thus brought before it. In this way, the combination of these two different approaches – constitutional and administrative – is what has made the emergence of a protection for aliens also possible in France, in a way, thus, overcoming the normal level of judicial activism in French public law. A similar observation is possible in the case of the supranational courts. Although the Strasbourg court is directly competent for the protection of fundamental rights, the reasoning followed by the ECJ has indirectly led to protection that sometimes is greater than the one ensured by the ECtHR. The question now posed is whether the increasing functional competence of the ECJ will consecrate this Court as the determinant one for the development of aliens’ status. In this sense, with respect to the so-called phenomenon of constitutionalisation, what this study essentially reflects is not so much the absolute character of the constitutional principles, as the expansive use by the courts of more technical criteria, ultimately employed to ensure the rights of the person, in response to a situation of limited or no protection. Beyond the more abstract claims on the impact of the movement of constitutionalisation, the main point thus indicated here is the outstanding normative role of the courts, anticipating a response in areas where the rest of public authorities have failed to provide a satisfactory one[720]. In sum, it indicates the current implicit tendency towards remedying with the courts the failure to officially reach a social consensus. The process of definition of aliens’ legal status is therefore of a very peculiar nature. The incorporation of the immigrant into the host society is rather a non-structured and partial one, mainly motivated by instrumental considerations. In the sphere of immigration, the courts arise as the sole possibility of intervention that is not subject to the otherwise general political pressures. In this context of strong instrumentalisation of the law by politics, the judiciary – the key mechanism in the phenomenon of constitutionalisation – allows for the reconstruction of an area of values common to the different Western legal orders. These are values, therefore, independent of the peculiarities of their respective legal structures. In the final analysis, thus, the jurisprudential study of the legal status of the immigrant makes it possible to examine this series of human values that are precisely at issue in the phenomenon of immigration, their constitutionalisation ultimately consisting of being assumed by the law as special safeguards. In this way, this attribution of guarantees represents some

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kind of juridification of this area of common civilisation. Furthermore, it signalises the progressive and ongoing delimitation of this area. Indeed, through their intervention, the courts ultimately reflect the evolution of society’s needs and perception. They actively express these changes before the legislator is actually able to formulate them. Nevertheless, this ability of the judiciary of moving along the transformations of society, in fact also represents the limits to its capacity to provide a normative answer: the degree of tolerance of the society in which the courts intervene signals the threshold to the judiciary’s possibilities of normative intervention and innovation. B. Precarious rights: limits inherent in the judicial type of response Although the analysis of the case law carried out here has evidenced the thorough transformation that immigration law and states’ sovereignty have undergone, this work has also illustrated the limits of this transformation. The current situation reflects the confluence of two contradictory tendencies. While the number and type of rights recognised and accorded to the aliens officially admitted in the national territories has been progressively reinforced, the domestic policies concerning the permanence and first entry of aliens have also become increasingly restrictive[721]. Indeed, no strong polemic now surrounds the recognition of rights practically equivalent to those enjoyed by nationals to lawfully residing aliens. Thus, an important and effective body of fundamental rights currently protects the status of long-term resident aliens in the societies of the host countries[722]. Moreover, these major transformations have also affected the premises on which the conferral of entry and permanence permits is grounded. At the same time, though, the courts, which have made possible this progressive emergence of a status of aliens, have not intended to explicitly challenge the essential premise on which immigration law is built; that is, the non- existence of a right to entry and permanence. The transformations of immigration law analysed in this study have not showed a complete chronological evolution in the reasoning of the courts. The reconstruction of the judicial reasoning carried out here actually represents a mixture of different logical elements and criteria. The affirmation of the right of the states to reject the entry of unwanted aliens coexists with the questioning of this premise. In the final analysis, it does show a certain chronological evolution of the courts’ reasoning, but the ultimate underlying idea is however the coexistence of two fundamental and contradictory jurisprudential trends, which have been presented here through the double category of precarious and emergent rights. In effect, even when the courts end up recognising a right to entry and permanence, they are reluctant to affirm its general character and, therefore, its ultimate nature as a right. Ultimately, thus, the development through the courts of a protection for aliens is affected by structural limits. Even if the courts have offered a response, this can only be a limited one conditioned by the specific changing circumstances. For this reason, even if the courts manage to introduce fundamental changes in the sphere of immigration law, these transformations are not always accepted and respected by the other public authorities. The innovative capacity of the courts is not strong enough for that. In this sense, the currently increasingly restrictive trend in the field of immigration ultimately reflects the limited capacity of assimilation of changes by society, its precise degree being partly expressed in the level and type of judicial intervention[723]. Ultimately, to the extent that inherent in the idea of national is the exclusion of the ‘‘other’’, of the non-national, the treatment conferred on aliens by the

domestic legal orders offers an instrument to analyse -or, even, to evaluate- the society of reception of immigration[724]. Quoting Joseph H. H. Weiler in his analysis of the limits set by the ECJ on its own jurisdiction in cases concerning non-EC nationals, ‘‘the judicial scrutiny, whatever its outcome in the individual case, would be the affirmation of the humaneness of the individual’’[725]. In this sense, beyond showing the general limits to the protection of aliens, what this analysis has ultimately reflected are the specific limits inherent in the judiciary, the mechanism through which this protection has been conferred. Indeed, the courts show reluctance to intervene in spheres that they recognise as ultimately belonging to the sovereign prerogatives of the states, such as the one concerning the entry and permanence of aliens. In this sense, is interesting to notice that even when the courts have prompted the introduction of important reforms, they have ended up accommodating their degree of intervention to the other public authorities. They have moderated their intervention according to its reception by society. They have for example reduced it as soon as the principles set in their case law were reflected in the legislation, in a way refusing to push this process any further. Germany is paradigmatic in this respect, where immigration law has been fundamentally constructed through the case law. Nevertheless, this intervention was only crucial up to the reform of 1990, since, after that, the courts ceased to introduce major innovations in this law. For this reason, the German decisions analysed in this study refer primarily to this period. After this, the case law of the supranational jurisdictions has essentially been devoted to stimulating further changes. In this sense, the supranational case law may have helped to reactivate the jurisdictional instrument in the case of Germany. Essentially, the possibilities of intervention of the courts are conditioned by the other public authorities who can actually go so far as to circumvent the impact of the principles set by the courts. The governments can for instance directly contest the principles introduced by the courts and neutralise their impact by introducing legislative reforms[726]. In this way, despite the principles set by the courts in the sphere of immigration, a very restrictive trend now characterises the concession of the entry and permanence permits. As the ambivalence of the double category used in this study has tried to show, the fundamental premise underlying the idea of precariousness cannot be in this way completely suppressed. The courts do not have the capacity, or even the will, for such a revolution; neither have they the material means, nor the democratic legitimacy for this important innovation[727]. Even if in their control of the respect of fundamental rights the courts have ultimately acted as indicators of the need for reform, they nevertheless cannot go beyond their exclusively ex-post protective role. The transformation of the basic conception characterising immigration law corresponds rather to another power[728]. Actually, as the progressive consolidation of a constitutional status of aliens takes shape, and as the more immediate need for limiting the until recently unlimited power of the administration is already being satisfied, the question that appears is a different one. This new question concerns the necessity of implementing a complete and effective system which allows for a correct incorporation and integration of the immigrants into the host society. The need for overcoming the strictly jurisdictional dimension is in this way evidenced. The phenomenon of immigration has indeed to be confronted by a comprehensive approach of the law, and not only from specific and isolated responses

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such as the ones offered by the courts. Ultimately, the law cannot continue to be subject to political pressures. Even if it is not the proper role of the law to provide the ultimate political decision, it must at least set a consistent basis for such a decision[729]. This notwithstanding, the emergence of a protection for aliens through the reasoning of the judiciary is already significant enough, to the extent that it has led the courts to surpass the limits set for its intervention. Indeed, this type of intervention by the courts has put forward a whole series of different questions such as the reformulation of the traditional principle of division of powers, the loss of legitimacy of the legislator, the role of the courts in spheres where there is no social consensus or, even, the limits of the human rights discourse and of the impact of constitutionalisation. All of which at least evidence the important transformations undergone by Western legal orders. This is ultimately the role played by the courts in the domain of immigration. Although they have not – and cannot – offer a general and definitive new response, they have de facto warned of its necessity, anticipating moreover the basis for this reform and stimulating its formulation, in a way, as Dworkin’s ideal judge, Hercules, is expected to proceed[730]. Most importantly, the intervention of the courts has asserted the universality of fundamental rights, merely by referring to aliens’ human condition. In this sense, even if it does not correspond to the courts to offer a final normative response, their emergent and determinant role in spheres such as immigration can nevertheless be positively interpreted. In the final analysis, it proves the legitimate and effective role of the courts at indicating the need and setting the basis for the construction of these new criteria. The reflection by Erwin Chemerinsky on the specific ways of protection of fundamental rights seems relevant in this regard: if the protection of individual liberties is granted, ‘‘the allocation of power among the branches of government in accomplishing this task is less important than the fact that the rights are safeguarded’’[731]. The preoccupation for the possibility of a ‘‘government of judges’’, as feared by Kelsen, would then only represent a secondary issue.

Conclusion This study has analysed the process of conferral of protection on aliens. Two main factual premises have been taken as the staring point, namely, the rights recognised by the legal orders of Germany, France and Spain to aliens and, secondly, the determinant role played by the courts in the conferral of these rights. According to these premises, this book has essentially pursued a reconstruction of the specific logical process followed by the courts vis-a`-vis the phenomenon of immigration. Implicit in this reconstruction are at the same time, though, the very limits inherent in this kind of protection: limits to the emergence of a protection for aliens since the element of precariousness is not suppressed by the protection conferred and, in turn, limits to the normative capacity of the courts because the courts cannot go completely beyond their function of adjudicating the law. Indeed, although the courts have conferred an increasing protection on aliens, this has never gone so far as to entirely challenge the fundamental principle on which immigration law is structured. That is, the sovereignty of the states to decide, according to their discretionary prerogatives, which aliens are to be allowed to enter and stay in their territories. In this sense, the process of conferral of rights on aliens has been structured around the double category of precarious and emergent rights, trying thus to show how the duality and ambivalence in the reasoning of the courts is always present. Even if the courts sometimes end up conferring a right of entry and permanence, this conferral never expresses a deliberate will by the courts to directly question the states’ sovereignty to control immigration flows. The recognition of such a protection is, rather, essentially driven by the logic inherent in the principles of protection of fundamental rights, and justified by the courts by referring to the specific circumstances of each case. Precariousness, as defined here, remains despite – or because of – the intervention of the courts. In any case, this process has also demonstrated the significance of the role played by the courts. After evaluating the impact in this process of the supranational case law and of the own national mechanisms of protection of fundamental rights, this study has ultimately interpreted the characteristics inherent in the judicial function as one of the determinant factors of the conferral of protection on aliens. Moreover, it has analysed this intervention as revealing a new emerging normative and political power in spheres where consensus is not easily reached. From this perspective, the judiciary would represent a power that avoids the rigidities and complexities of the instruments which have been in principle officially conferred such a task. In effect, by analysing the case of immigration, the possible existence of a far more general development in the role of the different powers of state has been raised. The courts have come to represent a public authority with increasingly powerful prerogatives, an authority which actually alters the very meaning of the principle of separation of powers. This progressive transformation is indeed especially evident in countries where the judiciary was not originally conceived to have such a leading and principal role. However, as has also been demonstrated, many arguments stand against this evolution. The courts do not have the capacity to overcome to such an extent the limits of their sphere of competence. Neither do they have the material means, nor the legitimacy to come to play such a political and normative role.

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Above all, though, this study has tried to contribute to the analysis of the major alterations undergone by the status of aliens in most Western countries during the last decades. In this sense, it has subscribed to the type of research – mainly conducted in the domain of political science – that fundamentally aims to examine the reasons and the specific process followed in the conferral of protection on aliens, and which thus proposes different abstract variables as explanations for this process. Nevertheless, with respect to this kind of research, this work has incorporated the legal and comparative dimension, the case law being the instrument chosen to conduct this analytical and causal dissection, and comparative law the method. In this way, this work has tried to combine the analysis of the approach and reaction by Germany, France and Spain to immigration with the interpretation of the differences between their respective legal orders. These latter differences set out a distinct judicial reasoning, as well as, in the final analysis, different possibilities of impact of the new movement of constitutionalism. In effect, the comparative method has allowed for an interlaced analysis of a very wide range of questions, thus simultaneously serving different purposes. According to the most immediate objective of comparative law, this research has aimed to contribute to a better understanding of the different legal orders analysed. It has in this way proceeded to examine the main differences and similarities in the protection conferred on aliens, and, thus, in turn, in the mechanisms of protection of fundamental rights existing in each system. Indeed, the characteristic features inherent in Germany, France and Spain have underlain all this study, their distinctiveness being thus explicitly or implicitly considered throughout its chapters. Some of these contrasting features are, for instance, the type of initial approach to immigration, the actual protection conferred on aliens, the mechanisms foreseen in each system for the protection of fundamental rights, the abstract or concrete underlying legal structure, the kind of reasoning followed by the courts, or, even, the role of the legal scholarship and its possibilities for influencing the courts in their decision-making. At the same time, however, this comparative method has shown that even if very different features and basic premises exist in each country, the results ultimately achieved can nevertheless be very similar. In a way, thus, it has tried to convey the limits inherent in the categories and models usually employed to describe and explain the respective national responses. Although these national paradigms can offer the basis from which to start analysing a specific question, their distinctiveness is often not to be recognised in their implementation. Moreover, in today’s increasingly globalised and mobilised society, this initial divergence is progressively nuanced, the countries often confronting similar kinds of needs and thus formulating comparable ways of response. In this sense, this study has revealed how notwithstanding the differences in the general constitutional and legal structures, the courts of the three countries considered have progressively moved towards converging solutions in protecting aliens. Essentially, the courts have reacted to the severe consequences following the execution of expulsions, trying thus to mitigate their impact on aliens. Indeed, although the courts have continually reiterated state sovereignty as regards decisions on entry of aliens into national territory, when confronted with practical situations in which protection of aliens appeared fundamental, the responses given in those cases often challenge the effectiveness of the state prerogatives. In the final analysis, the conferral of protection by the courts is prompted by the need to make the

situations resulting from the implementation of immigration law measures and the constitutional and general principles in force in the respective countries compatible. The courts have managed to set up a range of protective means against national administrations by introducing procedural guarantees in the sphere of immigration. This in turn has led to the consolidation of substantive rights for aliens. In certain situations, the rights thus conferred manage to overcome the fundamental premise on which immigration and reception of aliens is usually based: that is, the denial of a right of aliens to entry and to permanent stay. Furthermore, the use of the comparative method has shown how very different variables need to be considered in order to try to explain the differences between legal orders or, even, to attempt to foresee the consequences of these systems, such as the type of protection that will be conferred on aliens in each country. As demonstrated in relation to Spain, the existence of a complete and effective system of constitutional guarantees does not always suffice in order to ensure respect for some rights. Certain underlying elements might play a more determinant role than these guarantees. Thus, although specific guarantees for aliens had been incorporated into Spanish legal texts, the protection finally conferred on them has not been greater than in other countries. It has actually been less comprehensive, the phenomenon of immigration having only now started to be understood by Spanish society. From this perspective, the comparison with other countries – such as Germany or France – with more years of experience in the sphere of immigration as well as with more consolidated constitutional traditions, should allow for a better understanding of Spain’s particular circumstances. The same reasoning could in effect be applied to countries – as complex as Spain in terms of immigration – which will be expected to start dealing with aliens after the EU enlargement. In a more indirect way, thus, this work has also served purposes that are of less immediate concern to comparative law. In a way, it has even aimed to reflect on the future developments that are to be foreseen in the field of immigration. After structuring this scheme of intervention by the courts at the national level, the progressive emergence of supranational jurisdictions with increasing competence in this sphere should lead us to ponder on the implications of this new scenario which is being designed in the European sphere. Indeed, this comparative method needs now to be re-framed in light of the impact of international law and of the new and growing competence of the European Union over third-country nationals. Indirect responses, such as the one developed by the judiciary at the national level as a way to limit the traditional absolute discretionary prerogatives of the states, need thus to be re-contextualised. Though, the final outcome from the confluence of this new European competence with the national jurisdictions is still not clear. The incorporation of a new court such as the ECJ into this ongoing process of jurisprudential reformulation of aliens’ legal status introduces a new dimension with unforeseeable consequences. In the final analysis, it opens a promising field for new research on this question. Likewise, the analytical scheme employed here could be further implemented in relation to other national cases. The comparison, for instance, with common law countries and with countries that have been traditionally considered as countries of immigration also appears as the natural prolongation of this study. In particular, the features inherent in the American model render this country an extremely interesting case in this respect.

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Essentially, though, this research has tried to reflect on the possible impact of the new movement of constitutionalism – so-called constitutionalisation – on the phenomenon of immigration. It has thus endeavoured to show the protection conferred on aliens by the courts under the impulse of the new constitutional principles and guarantees. It is a protection, therefore, that emerges from the new premises established in modern constitutions. In the final analysis, though, after examining this process in the legal orders of Germany, France and Spain, and once having reflected on the role played by the different elements involved in this process, what arises is the exact opposite of what one would at first assume to be the case. In other words, the influence played by modern constitutionalism on immigration in host countries is not as great as the role played by immigration in shaping modern constitutionalism and, more generally, host societies. In this sense, what has been here regarded as a protection deriving from the imperatives of modern constitutionalism, could now be ultimately seen as inherent in the very phenomenon of immigration; that is, as emerging from the new dynamics that such a reality has started in the host societies. Indeed, immigration today poses new types of questions and thus requires a different way of reasoning. As a result, distinct mechanisms of elaboration of responses, as well as new means of protection of the rights of the person, are initiated, this in itself affecting the very conception of constitutional law. From this perspective, immigration forces us to reflect on the very basis of society. It leads us to reformulate the traditional understanding of the law, as well as, ultimately, of the specific process of construction of the national identity. Even if from a very restricted perspective, this comparative analysis hopes to have somewhat contributed to this aim.

List of court decisions

Immigration law

National courts Germany 6 BVerfGE 32, Beschluss des Ersten Senats vom 16. Januar 1957, Bundesverfassungsgericht. BVerwGE, Beschluss vom 27. Februar 1962 -I C 114.59, Bundesverwaltungsgericht. 19 BVerfGE 394, Beschluss des Ersten Senats vom 1. Ma¨rz 1966, Bundesverfassungsgericht. 34 BVerwGE 325, Urteil vom 18. Dezember 1969 – I C 5.69 (VG Du¨sseldorf), Bundesverwaltungsgericht. BVerwGE, Urteil vom 18. Dezember 1969 -I C 33.69 (Bayerischer VGH), Bundesverwaltungsgericht. BVerfGE, Beschluss des Zweiten Senats vom 17. Februar 1969, Bundesverfassungsgericht. 35 BVerwGE 291, Urteil des Ersten Senats vom 16. Juni 1970 – I C 47.69 (VGH Mannheim), Bundesverwaltungsgericht. 36 BVerwGE 45, Urteil vom 20. August 1970 -IC 55.69 (VGH Mu¨nchen), Bundesverwaltungsgericht. 31 BVerfGE 58, Beschluss des Ersten Senats vom 4. Mai 1971, Bundesverfassungsgericht. 38 BVerwGE 90, Urteil vom 29. April 1971 -I C 7/69 (Mu¨nster), Bundesverwaltungsgericht. BVerwGE, Beschluss vom 29. August 1972 -I B 51.72 (BayVGH), Bundesverwaltungsgericht. 34 BVerfGE 211, Beschluss des Ersten Senats vom 24. Januar 1973, Bundesverfassungsgericht. 42 BVerwGE 133, Urteil des Ersten Senats vom 3. Mai 1973 -I C 33.72 (OVG Berlin), Bundesverwaltungsgericht. 42 BVerwGE 141, Urteil des Ersten Senats vom 3. Mai 1973 -I C 20/70 (Mu¨nchen), Bundesverwaltungsgericht. 42 BVerwGE 143, Urteil des Ersten Senats vom 3. Mai 1973 -I C 59.70 (OVG Mu¨nster), Bundesverwaltungsgericht. 42 BVerwGE 148, Urteil vom 3. Mai 1973 -I C 35.72 (OVG Mu¨nster), Bundesverwaltungsgericht. 35 BVerfGE 382, Beschluss des Ersten Senats vom 18. Juli 1973, Bundesverfassungsgericht. 38 BVerfGE 52, Beschluss des Ersten Senats vom 16. Juli 1974, Bundesverfassungsgericht. 48 BVerwGE 299, Urteil des Ersten Senats vom 11. Juni 1975 -I C 8/71 (Mu¨nster), Bundesverwaltungsgericht. 49 BVerwGE 36, Urteil des Ersten Senats vom 1. Juli 1975 – I C 35.70 (OVG Mu¨nster), Bundesverwaltungsgericht. 55 BVerwGE 8, Urteil vom 25. Oktober 1977 – I C 31/74 (Berlin), Bundesverwaltungsgericht. 49 BVerfGE 168, Beschluss des Ersten Senats vom 26. September 1978 -1 BvR 525/77, Bundesverfassungsgericht. 56 BVerwGE 246, Urteil des Ersten Senats vom 27. September 1978 – 1 C 79.76 (OVG Lu¨neburg), Bundesverwaltungsgericht. 56 BVerwGE 254, Urteil des Ersten Senats vom 27. September 1978 – 1 C 48/77 (Kassel), Bundesverwaltungsgericht. BVerwGE, Urteil vom 27. September 1978 -1 C 28.77 (VGH Kassel), Bundesverwaltungsgericht. BVerwGE, Urteil vom 10. November 1978 -1 B 246.77 (VGH Kassel), Bundesverwaltungsgericht. BVerwGE, Urteil vom 2. Februar 1979 – 1 B 238.78 (VGH Mannheim), Bundesverwaltungsgericht.

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51 BVerfGE 386, Beschluss des Ersten Senats vom 18. Juli 1979, Bundesverfassungsgericht. 50 BVerfGE 166, Beschluss des Ersten Senats vom 17. Januar 1979, Bundesverfassungsgericht. 60 BVerwGE 75, Urteil des Ersten Senats vom 26. Februar 1980 – 1 C 90/76 (Mannheim), Bundesverwaltungsgericht. 60 BVerwGE 126, Urteil des Ersten Senats vom 20. Mai 1980 – 1 C 55/75 (Bremen), Bundesverwaltungsgericht. 61 BVerwGE 32, Urteil des Ersten Senats vom 16. September 1980 – 1 C 28/78 (Mu¨nchen), Bundesverwaltungsgericht. 61 BVerwGE 105, Urteil des Ersten Senats vom 21. Oktober 1980 -1 C 19/78 (Mu¨nchen), Bundesverwaltungsgericht. BVerwGE, Urteil vom 26. Ma¨rz 1982 -1C 29/81 (Mannheim), Bundesverwaltungsgericht. BVerwGE, Beschluss vom 4. Oktober 1982 -1 B 93.82 (VGH Baden-Wu¨rttemberg), Bundesverwaltungsgericht. BVerwGE, Beschluss vom 11. Februar 1983 -1 B 19/83 (Mannheim), Bundesverwaltungsgericht. BVerwGE, Beschluss vom 6. Mai 1983 -1 B 58/83 (Mannheim), Bundesverwaltungsgericht. BVerfGE, Beschluss vom 13. Juni 1983 – 2 BvR 779/83, Bundesverfassungsgericht. BVerfGE, Vorpru¨fungsausschuss, Beschluss vom 19. August 1983 -2 BvR 1284/83, Bundesverfassungsgericht. BVerfGE, Beschluss vom 22. August 1983 – 2 BvR 1193/83, Bundesverfassungsgericht. BVerfGE, Vorpru¨fungsausschuss, Beschluss vom 18. Januar 1984 – 2 BvR 1979/83, Bundesverfassungsgericht. 69 BVerwGE 359, Urteil vom 10. Juli 1984 -1 C 52/81 (Mu¨nster), Bundesverwaltungsgericht. 70 BVerwGE 127, Urteil vom 18. September 1984 -1 A 4/83, Bundesverwaltungsgericht. BVerwGE (Vorpru¨fungsausschuss), Beschluss vom 27. November 1984 -2 BvR 1127, 1130/84, Bundesverfassungsgericht. 69 BVerfGE 220, Beschluss des Zweiten Senats vom 21. Ma¨rz 1985 -2 BvR 1642/83, Bundesverfassungsgericht. 71 BVerwGE 228, Urteil vom 30. April 1985 -1 C 33.81 (OVG Mu¨nster), Bundesverwaltungsgericht. BVerwGE, Beschluss vom 1. November 1985 – 1 B 128/85 (Mannheim), Bundesverwaltungsgericht. BVerwGE, Beschluss des Ersten Senats vom 4. April 1986 -1 A 10. 86, Bundesverwaltungsgericht. 74 BVerfGE 358, Beschluss des Zweiten Senats vom 26. Ma¨rz 1987 -2 BvR 589/79, 740/81 und 284/85, Bundesverfassungsgericht. 76 BVerfGE 1, Beschluss des Zweiten Senats vom 12. Mai 1987, -2 BvR 1226/83, 101, 313/84, Bundesverfassungsgericht. 78 BVerfGE 179, Beschluss des Ersten Senats vom 10. Mai 1988 -1 BvR 482/84 und 1166/85, Bundesverfassungsgericht. 80 BVerfGE 81, Beschluss des Zweiten Senats vom 18. April 1989 – 2 BvR 1169/84, Bundesverfassungsgericht. BVerfGE, Beschluss des Zweiten Senats (2. Kammer) vom 10. August 1989 -2 BvR 67/85, Bundesverfassungsgericht. BVerfGE (3. Kammer des Zweiten Senats), Beschluss vom 12. Dezember 1989 -2 BvR 377/88, Bundesverfassungsgericht. 83 BVerfGE 37, Urteil vom 31. Oktober 1990 -2 BvF 2, 6/89, Bundesverfassungsgericht.

83 BVerfGE 60, Urteil vom 31. Oktober 1990 -2 BvF 3/89, Bundesverfassungsgericht. BVerwGE, Beschluss vom 31. Oktober 1991 -1 B 111. 91, Bundesverwaltungsgericht. BVerwGE, Beschluss vom 18. Juni 1992 -1 B 78. 92, Bundesverwaltungsgericht. BVerfGE, Beschluss vom 1. Oktober 1992 -2BvR 1365/92, Bundesverwaltungsgericht. BVerfGE, Beschluss vom 15. Juni 1993 -2 BvR 900/93, Bundesverfassungsgericht. BVerwGE, Urteil vom 29. Juli 1993 -1 C 25. 93, Bundesverwaltungsgericht. BVerwGE, Beschluss vom 30. Dezember 1993 -1 B 185.93, Bundesverwaltungsgericht. BVerwGE, Beschluss vom 24. Januar 1994 -1 B 181. 93, Bundesverwaltungsgericht. BVerwGE, Beschluss vom 24. Januar 1994 -1 B 2. 94, Bundesverwaltungsgericht. BVerwGE, Beschluss vom 1. September 1994 -1 B 90.94, Bundesverwaltungsgericht. BVerwGE, Beschluss vom 15. September 1994 -1 B 214. 93, Bundesverwaltungsgericht. BVerfGE, Beschluss vom 13. Oktober 1994 -1 BvR 1799/94, Bundesverfassungsgericht. BVerwGE, Beschluss vom 17. November 1994 -1 B 224.94 (1 VR Bundesverwaltungsgericht. BVerwGE, Beschluss vom 2. Dezember 1994 -1 B 123.94, Bundesverwaltungsgericht. BVerfGE, Beschluss vom 6. Dezember 1994 -2 BvR 2084/94, Bundesverfassungsgericht. BVerwGE, Beschluss vom 10. Januar 1995 -1 B 153.94, Bundesverwaltungsgericht. BVerwGE, Urteil vom 19. Ma¨rz 1996 -1 C 34.93, Bundesverwaltungsgericht. BVerwGE, Urteil vom 27. August 1996 -1 C 8. 94, Bundesverwaltungsgericht. BVerwGE, Urteil vom 15. April 1997 -9 C 38/96 (Kassel), Bundesverwaltungsgericht. BVerwGE, Beschluss vom 21. August 1997 -1 B 160/97, Bundesverwaltungsgericht. BVerwGE, Urteil vom 18. November 1997 -1 C 22. 96, Bundesverwaltungsgericht. BVerwGE, Urteil vom 9. Dezember 1997 -1 C 16.96, Bundesverwaltungsgericht. BVerwGE, Urteil vom 9. Dezember 1997 -1 C 20.97, Bundesverwaltungsgericht. BVerwGE, Beschluss vom 24. Ma¨rz 1998 -1 C 5. 96, Bundesverwaltungsgericht. BVerwGE, Urteil vom 10. Juli 2001 -1 C 35.00, Bundesverwaltungsgericht. BVerwGE, Urteil vom 26. Februar 2002 -1 C 21/00, Bundesverwaltungsgericht. BVerwGE, Urteil vom 16. Juli 2002 -1 C 8. 02, Bundesverwaltungsgericht. BVerfGE, Beschluss vom 18. Dezember 2002 -2 BvF 1/02, Bundesverfassungsgericht. BVerfGE, Beschluss vom 24. Juni 2003 -2 BvR 685/03, Bundesverfassungsgericht.

France CE, arreˆt 24 janvier 1867, Radziwil, Conseil d’E´tat. CE, arreˆt 14 mars 1884, Morphy, Conseil d’E´tat. CE, arreˆt 20 juin 1932, Ville de Castelnaudary, Conseil d’E´tat. CE, arreˆt 2 aouˆt 1936, Naundorff, Conseil d’E´tat. CE, arreˆt 8 mars 1940, Kaboloeff, Conseil d’E´tat. CE, arreˆt 24 octobre 1952, Eckert, Conseil d’E´tat. CE, arreˆt 21 novembre 1952, Marcon, Conseil d’E´tat. CE, arreˆt 16 fe´vrier 1955, Dame Bourokba, Conseil d’E´tat. CE, arreˆt 22 avril 1955, Association franco-russe dite Rousky-Dom, Conseil d’E´tat. CE, arreˆt 3 fe´vrier 1956, Keddar, Conseil d’E´tat.

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8.94),

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CE, Ass., arreˆt 2 novembre 1973, Societe´ Anonyme ‘‘Librairie Franc¸ois Maspero’’, Conseil d’E´tat. CE, Ass., arreˆt de 23 juillet de 1974, Ferrandiz Gil Ortega, Conseil d’E´tat. CE, arreˆt 13 janvier 1975, Da Silva et Confe´de´ration franc¸aise de´mocratique du travail, Conseil d’E´tat. CE, arreˆt 3 fe´vrier 1975, Pardov, Conseil d’E´tat. CE, Ass., arreˆt 18 juin 1976, Moussa Konate´, Conseil d’E´tat. CE, Ass., arreˆt 21 janvier 1977, Ministre de l’Inte´rieur c/Dridi, Conseil d’E´tat. CE, Ass., arreˆt 13 mai 1977, Perregaux, Conseil d’E´tat. CE, arreˆt 24 novembre 1978, Mouvement contre le racisme, l’antise´mitisme et pour la paix, Conseil d’E´tat. CE, Ass., arreˆt 8 de´cembre 1978, El Kaamouchi, Conseil d’E´tat. CE, Ass., arreˆt 8 de´cembre 1978, GISTI, CFDT et CGT, Conseil d’E´tat. CE, Ass., arreˆt 8 de´cembre 1978, Ministre de l’Inte´rieur c/ Benouaret, Conseil d’E´tat. De´cision n 79-109 DC du 9 janvier 1980 (loi relative a` la pre´vention de l’immigration clandestine et portant modification de l’Ordonnance n 45-2658 du 2 novembre 1945), Conseil Constitutionnel. CE, Sect., arreˆt 4 juillet 1980, Zemma, Conseil d’E´tat. CE Ass., arreˆt 11 juillet 1980, Ministre de l’Inte´rieur c/ Mme. Montcho, Conseil d’E´tat. CE, arreˆt 25 juillet 1980, Touami, Conseil d’E´tat. CE, Sect., arreˆt 24 juillet 1981, Belasri, Conseil d’E´tat. CE, Sect., arreˆt 16 mars 1984, Ministre de l’Inte´rieur c/ Djaballah, Conseil d’E´tat. CE, arreˆt 27 septembre 1985, Gisti (47.324), Conseil d’E´tat. CE, arreˆt 27 septembre 1985, Gisti (54.114), Conseil d’E´tat. CE, arreˆt 28 fe´vrier 1986, M. Ngako Jeuga, Conseil d’E´tat. De´cision n 86-216 DC du 3 septembre 1986 (loi relative aux conditions d’entre´e et de se´jour des e´trangers en France), Conseil Constitutionnel. CE Sect., arreˆt 10 juillet 1987, Abarchih, Conseil d’E´tat. CE, Sect., arreˆt 10 juillet 1987, Lachger, Conseil d’E´tat. CE, Ass., arreˆt 6 novembre 1987, Buayi, Conseil d’E´tat. CE, Sect., arreˆt 13 novembre 1987, Tang kam Keung, Conseil d’E´tat. CE, arreˆt, 23 de´cembre de 1987, Tahraoui, Conseil d’E´tat. CE, Sect., arreˆt 13 janvier 1988, Abina, Conseil d’E´tat. CE, arreˆt 20 janvier 1988, Elfenzi, Conseil d’E´tat. De´cision n 89-261 DC du 28 juillet 1989 (loi relative aux conditions de se´jour et d’entre´e des e´trangers en France), Conseil Constitutionnel. De´cision n 89-266 DC du 9 janvier 1990 (loi modifiant l’Ordonnance n 45-2658 du 2 novembre 1945 relative aux conditions d’entre´e et de se´jour des e´trangers en France), Conseil Constitutionnel. De´cision n 89-269 DC du 22 janvier 1990 (loi portant diverses dispositions relatives a` la se´curite´ sociale et a` la sante´), Conseil Constitutionnel. CE, arreˆt 23 fe´vrier 1990, Sioui, Conseil d’E´tat. CE, Ass., arreˆt 29 juin 1990, Engin, Conseil d’E´tat. CE, Ass., arreˆt 29 juin 1990, Hablani, Conseil d’E´tat. CE, Ass., arreˆt 29 juin 1990, Imambaccus, Conseil d’E´tat.

CE, Ass., arreˆt 29 juin 1990, Pre´fet du Doubs c/Mme. Olmos Quintero, Conseil d’E´tat. CE, arreˆt 18 janvier 1991, Beldjoudi, Conseil d’E´tat.

Immigration law

CE, Ass., arreˆt 19 avril 1991, Babas, Conseil d’E´tat. CE, Ass., arreˆt 19 avril 1991, Belgacem, Conseil d’E´tat. CE, Ass., arreˆt 11 octobre 1991, Diouri, Conseil d’E´tat. De´cision n 92-307 DC du 25 fe´vrier 1992 (loi portant modification a` l’Ordonnance n 45-2658 du 2 novembre 1945 modifie´e), Conseil Constitutionnel. CE, Sect., arreˆt 10 avril 1992, Aykan, Conseil d’E´tat. CE, Sect., arreˆt 10 avril 1992, Marzini, Conseil d’E´tat. CE, Sect., arreˆt 10 avril 1992, Minin, Conseil d’E´tat. CE, 22 avril 1992, Alkan, Conseil d’E´tat. CE, 22 mai 1992, Ministre de l’Inte´rieur c/ Mme. Halima Zine El Khalma, Conseil d’E´tat. CE, 22 mai 1992, Mme. Larachi, Conseil d’E´tat. CE, arreˆt 22 mai 1992, Gisti, Conseil d’E´tat. CE, arreˆt 19 juin 1992, M. Adjim, Conseil d’E´tat. CE, Sect., Avis n 137342, 9 octobre 1992, M. Abihilali, Conseil d’E´tat. CE, arreˆt 9 novembre 1992, Pre´sident du gouvernement du territoire de la Polyne´sie franc¸aise, Pre´sident de l’Assemble´e territoriale de la Polyne´sie franc¸aise, Conseil d’E´tat. CE, arreˆt 2 de´cembre 1992, Mme. Parouty, Conseil d’E´tat. De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France), Conseil Constitutionnel. CE, Sect., arreˆts 27 mai 1994, M. Oncul et Mong’Anabola (2 espe`ces), Conseil d’E´tat. CE, Sect., arreˆt 4 novembre 1994, Al Joujo, Chiker, Conseil d’E´tat. CE, Sect., arreˆt 4 novembre 1994, El Alaoui, Conseil d’E´tat. CE, 17 juin 1996, M. et Mme. Haddou, Conseil d’E´tat. CE, Ass., arreˆt 3 juillet 1996, Kone´, Conseil d’E´tat. De´cision n 97-389 DC du 22 avril 1997 (loi portant diverses dispositions relatives a` l’immigration), Conseil Constitutionnel. TC, 12 mai 1997, Pre´fet de police c/ Ben Salem et Taznaret, Tribunal des Conflits. CE, 11 juin 1997, Ep. Talipoglu, Conseil d’E´tat. CE, Sect., arreˆt 9 juillet 1997, Association EKIN, Conseil d’E´tat. De´cision n 98-399 DC du 5 mai 1998 (loi relative a` l’entre´e et au se´jour des e´trangers en France et au droit d’asile), Conseil Constitutionnel. CE, Sect., Avis 30 novembre 1998, M. Berrad, Conseil d’E´tat. CE, Sect., arreˆt 9 juin 1999, M. et Mme. Forabosco, Conseil d’E´tat. CE, Sect., arreˆt 9 juin 1999, Mme. Hamssaoui, Conseil d’E´tat. CE, 5 mars 2001, Pre´fet de l’He´rault c. Hajjaj, Conseil d’E´tat. CE, 30 octobre 2001, Mme. Tliba, Conseil d’E´tat. De´cision n 2003-484 DC du 20 novembre 2003 (loi relative a` la maıˆtrise de l’immigration, au se´jour des e´trangers en France et a` la nationalite´), Conseil Constitutionnel.

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Spain STS (Sala de lo Contencioso-Administrativo), Sentencia de 25 de junio de 1980, Kanayo Daswani v. Gobernador Civil de las Palmas (RAJ 1980/3344), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 3 de julio de 1980, Franz G. D. v. Gobernador Civil de Castello´n (RAJ 1980/3404), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 22 de septiembre de 1981, Alberto C. y Nicole S. (RAJ 1981/3744), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 3 de noviembre de 1981, Lynne B. y D. Gordon R. L. (RAJ 1981/4726), Tribunal Supremo. STS (Sala de lo Contecioso-Administrativo), Sentencia de 21 de diciembre de 1981, James S. K. (RAJ 1981/5445), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo, Sentencia de 22 de enero de 1982, Nandor-Istvan L. (RAJ 1982/202), Tribunal Supremo. STC 41/1982 (Sala 1a), Recurso de Amparo, Sentencia de 2 de julio de 1982, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 30 de septiembre de 1982 (RAJ 4911), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 16 de noviembre de 1982 (RAJ 6999), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 6 de diciembre de 1982 (RAJ 7908), Tribunal Supremo. STC 11/1983 (Sala 2a), Recurso de Amparo, Sentencia de 21 de febrero de 1983, Korkala, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 17 de octubre de 1983 (RAJ 1983/ 5187), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 13 de febrero de 1984 (RAJ 1984/1052), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 3 de marzo de 1984 (RAJ 1984/1396), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 14 de junio de 1984 (RAJ 1984/4626), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 19 de noviembre de 1984 (RAJ 1984/ 6220), Tribunal Supremo. STC 107/1984 (Sala 2a), Recurso de Amparo, Sentencia de 23 de noviembre de 1984, Leyes Rosano, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 10 de diciembre de 1984 (RAJ 1984/ 6527), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 26 de abril de 1985 (RAJ 1985/2878), Tribunal Supremo. STC 99/1985 (Sala 2a), Recurso de Amparo, Sentencia de 30 de septiembre de 1985, Bowitz, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 25 de noviembre de 1985 (RAJ 1985/ 5674), Tribunal Supremo. ATC 127/1986 (Sala 1a, Seccio´n 2a), Auto de 12 de febrero de 1986, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 10 de noviembre de 1986 (RAJ 1986/ 6646), Tribunal Supremo.

STS (Sala de lo Contencioso-Administrativo), Sentencia de 21 de abril de 1987 (RAJ 1987/2986), Tribunal Supremo. STC 115/1987 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 7 de julio de 1987, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 1 de septiembre de 1987 (RAJ 1987/ 7707), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 18 de septiembre de 1987 (RAJ 1987/ 6072), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 23 de septiembre de 1987 (RAJ 1987/ 6145), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 19 de enero de 1988 (RAJ 1988/286), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 9 de febrero de 1988 (RAJ 1988/1286), Tribunal Supremo. STC 71/1988 (Sala 2a), Recurso de Amparo, Sentencia de 19 de abril de 1988, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 20 de febrero de 1989 (RAJ 1898/1128), Tribunal Supremo. STC 144/1990 (Sala 1a), Recurso de Amparo, Sentencia de 26 de septiembre de 1990, Tribunal Constitucional. ATS (Sala de lo Contencioso-Administrativo), Auto de 11 de octubre de 1990 (RAJ 1990/7.613), Tribunal Supremo. ATS (Sala de lo Contencioso-Administrativo), Auto de 24 de octubre de 1990 (RAJ 1990/7.788), Tribunal Supremo. ATS (Sala de lo Contencioso-Administrativo), Auto de 31 de diciembre de 1990 (RAJ 1990/10.246), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 7 de febrero de 1991 (RAJ 1991/1035), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 22 de febrero de 1991 (RAJ 1991/1504), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 30 de mayo de 1991 (RAJ 1991/3905), Tribunal Supremo. ATS (Sala de lo Contencioso-Administrativo), Auto de 6 de junio de 1991 (RAJ 1991/4.940), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 16 de junio de 1992, Tribunal Supremo. STC 94/1993 (Sala 1a), Recurso de Amparo, Sentencia de 22 de marzo de 1993, Evangelina L. Venzo´n, Tribunal Constitucional. STC 116/1993 (Sala 1a), Recurso de Amparo, Sentencia de 29 de marzo de 1993, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 10 de julio de 1993 (RAJ 1993/5500), Tribunal Supremo. STC 12/1994 (Sala 1a), Recurso de Amparo, Sentencia de 17 de enero de 1994, Tribunal Constitucional. STC 13/1994 (Sala 1a), Recurso de Amparo, Sentencia de 17 de enero de 1994, Tribunal Constitucional.

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STC 150/1994 (Sala 2a), Recurso de Amparo, Sentencia de 23 de mayo de 1994, Luisa Mohamed Messaud, Tribunal Constitucional. STC 181/1994 (Sala 1a), Recurso de Amparo, Sentencia de 20 de junio de 1994, Tribunal Constitucional. STC 242/1994 (Sala 1a), Recurso de Amparo, Sentencia de 20 de julio de 1994, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 11 de abril de 1995 (RAJ 1995/3172), Tribunal Supremo. STC 96/1995 (Sala 2a), Recurso de Amparo, Sentencia de 19 de junio de 1995, Tribunal Constitucional. STC 21/1996 (Sala 2a), Recurso de Amparo, Sentencia de 12 de febrero de 1996, Tribunal Constitucional. ATC 55/1996 (Sala 1a, Seccio´n 2a), Auto de 6 de marzo de 1996, Tribunal Constitucional. STC 66/1996 (Sala 1a), Recurso de Amparo, Sentencia de 16 de abril de 1996, Tribunal Constitucional. STC 86/1996 (Sala 1a), Recurso de Amparo, Sentencia de 21 de mayo de 1996, Tribunal Constitucional. STC 182/1996 (Sala 1a), Recurso de Amparo, Sentencia de 12 de noviembre de 1996, Tribunal Constitucional. STC 13/2001 (Sala 2a), Recurso de Amparo, Sentencia de 29 de enero de 2001, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 17 de diciembre de 2002, Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 20 de marzo de 2003, Tribunal Supremo. STC 95/2003 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 22 de mayo de 2003, Tribunal Constitucional. STS (Sala de lo Contencioso-Administrativo), Sentencia de 7 de julio de 2003 (RAJ 2003/4791), Tribunal Supremo. STS (Sala de lo Contencioso-Administrativo), Sentencia de 2 de octubre de 2003, Tribunal Supremo.

Supranational and international courts European Court of Justice Case C-36/75 Roland Rutili v. Ministre de l’Inte´rieur [1975] ECR I-1219, European Court of Justice. Joined Cases C-35/82 and C-36/82 Elestina Esselina Christina Morson v. State of The Netherlands and Head of the Plaatselijke Politie within the meaning of the Vreemdelingenwet; Sweradjie Jhanjan v. State of The Netherlands [1982] ECR I-3723, European Court of Justice. Case C-267/83 Aissatou Diatta v. Land Berlin [1985] ECR I-567, European Court of Justice. Joined Cases C-281/85, C-283/85, C-284/85, C-285/85 and C-287/85 Federal Republic of Germany, French Republic, Kingdom of The Netherlands, Kingdom of Denmark, United Kingdom of Great Britain and Northern Ireland v. Commission [1987] ECR I-3203, European Court of Justice. Case C-12/86 Meryem Demirel v. Stadt Schwa¨bisch Gmu¨nd [1987] ECR I-3719, European Court of Justice. Case C-113/89 Rush Portuguesa Lda v. Office Nationale d’Immigration [1990] ECR I-1417, European Court of Justice.

Case C-192/89 S. Z. Sevince v. Staatssecretaris van Justitie [1990] ECR I-3461, European Court of Justice. Joined Cases C-297/88 and C-197/89 Massam Dzodzi v. Belgian State [1990] ECR I-3763, European Court of Justice. Case C-18/90 Office National de l’Emploi v. Bahia Kziber [1991] ECR I-199, European Court of Justice. Case C-370/1990 CJ the Queen v. Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department [1992] ECR I-4265, European Court of Justice. Case C-43/93 Raymond Vander Elst v. Office des Migrations Internationales [1994] ECR I-3803, European Court of Justice. Case C-126/95 A. Hallouzi-Choho v. Bestuur van de Sociale Verzekeringsbank [1996] ECR I-4807, European Court of Justice. Joined Cases C-64/96 and C-65/96 Land Nordrhein-Westfalen v. Kari Uecker and Vera Jacquet v. Land Nordrhein-Westfalen ECR [1997] ECR I-3171, European Court of Justice. Case C-162/96 A. Racke GmbH Co. v. Hauptzollamt Mainz [1998] ECR I-3655, European Court of Justice. Case C-66/00 Mary Carpenter v. Secretary of State for the Home Department [2000] ECR I-6279, European Court of Justice. Case C-235/99 The Queen v. Secretary of State for the Home Department, ex parte Eleonora Ivanova Kondova [2001] ECR I-6427, European Court of Justice. Case C-63/99 The Queen v. Secretary of State for the Home Department, ex parte Wieslaw Gloszczuk and Elzbieta Gloszczuk [2001] ECR I-6369, European Court of Justice. Case C-257/99 The Queen v. Secretary of State for the Home Department, ex parte Julius Barkoci and Marcel Malik [2001] ECR I-6557, European Court of Justice. Case C-459/99 Mouvement contre le racisme, l’antise´mitisme et la xe´nophobie ASBL (MRAX) v. E´tat Belge [2002] ECR I- 6591, European Court of Justice. Joined Cases C-413/99 Baumbast and R v. Secretary of State for the Home Department [2002] ECR I-7091, European Court of Justice. Case C-188/00 Bu¨lent Kurz, ne´ Yu¨ce, v. Land Baden-Wu¨rttemberg [2002] ECR I-10691, European Court of Justice. Case C-109/01 Secretary of State for the Home Separtment v. Hacene Akrich [2003] ECR I-9607, European Court of Justice.

European Court of Human Rights Luedicke, Belkacem and Koc¸ v. Federal Republic of Germany, App. no. 6210/78, Judgment of 28 November 1978, Series A No. 29, European Court of Human Rights. Artico v. Italy, App. No. 6694/74, Judgment of 13 May 1980, Series A No. 37, European Court of Human Rights. Pakelli v. Federal Republic of Germany, App. No. 8398/78, Judgment of 25 April 1983, Series A No. 64, European Court of Human Rights. Sramek v. Austria, App. No. 8790/79, Judgment of 22 October 1984, Series A No. 84, European Court of Human Rights. Abdulaziz, Cabales and Balkandali v. the United Kingdom, App. Nos. 9214/80; 9473/81; 9474/81, Judgment of 28 May 1985, Series A No. 94, European Court of Human Rights. Bozano v. France, App. No. 9990/82, Judgment of 18 December 1986, Series A No. 124-F, European Court of Human Rights. Berrehab v. The Netherlands, App. No. 10730/84, Judgment of 21 June 1988, Series A No. 138, European Court of Human Rights.

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Soering v. the United Kingdom, App. No. 14038/88, Judgment of 7 July 1989, Series A No. 161, European Court of Human Rights. Moustaquim v. Belgium, App. No. 12313/86, Judgment of 18 February 1991, Series A No. 193, European Court of Human Rights. Cruz Varas and others v. Sweden, App. No. 15576/89, Judgment of 20 March 1991, Series A No. 201, European Court of Human Rights. Beldjoudi v. France, App. No. 12083/86, Judgment of 26 February 1992, Series A No. 234-A, European Court of Human Rights. Nasri v. France, App. No. 19465/92, Judgment of 13 July 1995, Series A No. 320-B, European Court of Human Rights. Van der Tang v. Spain, App. No. 19382/92, Judgment of 13 July 1997, Series A No. 321, European Court of Human Rights. Gu¨l v. Switzerland, App. No. 23218/94, Judgment of 19 February 1996, Reports 1996-VI, European Court of Human Rights. Amuur v. France, App. No. 19776/92, Judgment of 25 June 1996, Reports 1996-III, European Court of Human Rights. Chahal v. the United Kingdom, App. No. 22414/93, Judgment of 15 November 1996, Reports 1996V, European Court of Human Rights. Ahmut v. The Netherlands, App. No. 21702/93 Judgment of 28 November 1996, Reports 1996-VI, European Court of Human Rights. Nsona v. The Netherlands, App. No. 23366/94, Judgment of 28 November 1996, Reports 1996-V, European Court of Human Rights. Scott v. Spain, App. No. 21335/93, Judgment of 18 December 1996, Reports 1996-VI, European Court of Human Rights. Bouchelkia v. France, App. No. 23078/93, Judgment of 29 January of 1997, Reports 1997-I, European Court of Human Rights. H.L.R. v. France, App. No. 24573/94, Judgment of 29 April 1997, Reports 1997-III, European Court of Human Rights. D.v. the United Kingdom, App. No. 30240/96, Judgment of 2 May 1997, Reports 1997-III, European Court of Human Rights. El Boujaı¨di v. France, App. No. 25613/94, Judgment of 26 September 1997, Reports 1997-VI, European Court of Human Rights. Mehemi v. France, App. 25017/94, Judgment of 26 September 1997, Reports 1997-VI, European Court of Human Rights. Boujlifa v. France, App. No. 25404/94, Judgment of 21 October 1997, Reports 1997-VI, European Court of Human Rights. Dalia v. France, App. No. 26102/95, Judgment of 19 February 1998, Reports 1998-I, European Court of Human Rights. Soumare v. France, App. No. 23824/94, Judgment of 24 August 1998, Reports 1998-V, European Court of Human Rights. Erkalo v. The Netherlands, App. No. 23807/94, Judgment of 2 September 1998, Reports 1998-VI, European Court of Human Rights. Maaouia v. France, App. No. 39652/98, Judgment of 5 October 2000, Reports 2001-IX, European Court of Human Rights. Boultif v. Switzerland, App. No. 54273/00, Judgment of 2 August 2001, Reports 2001-IX, European Court of Human Rights.

Notes 1. In relation to this question, see the studies developed by sociologists and political scientists, generally reaching similar conclusions: the incapacity of states to control immigration, following the rise of unemployment in Europe. See for instance Cornelius, Martin, and Hollifield 1994, or Hollifield 1992, the latter arguing that the development of free market and human rights has prevented, or at least complicated, governmental policies to completely halt immigration. 2. See Soysal 1994. On the question of the impact of immigration on citizenship, see also Joppke 1999, comparing the cases of Germany, Great Britain and the United States of America. 3. See, for instance, Gurowitz 1999, referring for her analysis to the case of Japan. 4. See also in this sense Ruiz Fabri 2001, trying to analyse whether the progressive emergence of the international human rights discourse has ultimately signified a correlative decrease of the states’ sovereign prerogatives. According to this author, no such correlation is yet to be observed. Ultimately implied in the affirmation of the international mechanisms is in fact the idea that the states do not suffice for the protection of human rights and that, moreover, they even hinder this protection. Though, in the view of this author, the setting of limits to states’ prerogatives does not necessarily imply a better protection of human rights. Further measures would be necessary in order to achieve this. As understood by Ruiz Fabri, rather than derogating from the idea of state sovereignty, this notion should be merely reformulated. 5. See, among others, Guiraudon 1998, Guiraudon 2000, and Joppke 2001. 6. See Schnapper 1992, comparing different immigration models from the perspective of the historical and political background of the host countries. Her essay is ultimately a reflection on how the history of every nation and the process of construction of a nation’s identity condition essentially the definition of immigration policies. Also fundamental in this respect is the interpretation by Brubaker of the current immigration policy and nationality models grounded on a historical and sociological reconstruction of the idea of nation-state (Brubaker 1989). Fundamentally, Brubaker builds his thesis on the cases of France and Germany, as representatives of two paradigms which would respectively correspond to the ius soli and ius sanguinis traditions. According to this interpretation, whereas France’s definition of citizenship expresses a political and egalitarian conception of the nation, where each individual can become a member of the community through an act of will, in the case of Germany, the prevailing conception of the nation is rather an ethno-cultural one, according to which the community is originated by a series of predetermined common and objective features. However, more recent historical analyses contest today Brubaker’s thesis, questioning the actual existence of these opposing models of ius sanguinis and ius soli as in principle represented by Germany and France respectively. See, for instance, Gosewinkel 1995 and Fahrmeir 1997. 7. Different hypotheses have been attempted in this sense. For instance, according to Gary Freeman, the consolidation of the status of aliens should not be interpreted as a sign of liberal states’ weakness or inability to control immigration, but simply as a reflection of the internal political dynamics, which in the case of the United States are increasingly dominated by lobby groups (Freeman 1995). However, as understood by Christian Joppke, this explanation cannot apply to Europe, where no such mechanisms of decision-making exist. In European countries, the internal and legal mechanisms of protection (as opposed to the international and political ones) are rather what have made possible the extension of rights to aliens (Joppke 1998). This

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16. 17. 18.

19. 20. 21.

22.

23.

protection is in fact perceived by James Hollifield as an indirect mechanism of regulation of immigration by the states (Hollifiled 2000). Likewise, according to Virginie Guiraudon, rights are more likely to be granted to aliens when they are confined to bureaucratic or judicial venues –away, thus, from the political arena and electoral debate (Guiraudon 1999 and Guiraudon 2000). In this sense, Virginie Guiraudon proposes an analysis of the process of construction of the status of aliens that breaks with the traditional scheme consecrated by Marshall and which structured the definition of this status on three different and consecutive stages: civil, political and social rights (Marshall 1965). For a critique of this traditional scheme, see also Ferrajoli 1994. See, among others, Guiraudon 2000, Joppke 2001, Neuman 1990, and Legomsky 1987. See Fleiner 2001, p. 931. Kelsen 1991. For an analysis of this transformation from a political science perspective, see, for instance, Kenney, Reisinger, and Reitz 1999. See Stone Sweet 1999, p. 31. See Massey 1999, p. 312. See Sacco 1991, pp. 25 and 26. See Sacco 2001, pp. 1170-1171. Moreover, as this author argues ‘‘comparativists could understand without the difficulties of legal realism. The factual method precisely asks us to acknowledge the acts of the judge as law. Comparativists understand this point of view very well. If the realist method does not suffice for them, it is because comparativists attribute importance to the cultural baggage of judges and want to identify, under the circumstances, the element that could neutralise this baggage’’ (p. 1171). See Sacco 1991, pp. 23-24. See Fleiner 2001, p. 929. See the section on methodology in Ancel 1971, arguing the need to adapt the method of analysis in function of the object of analysis. The functionalist approach, as a method later developed in comparative law, would represent this aim. See Sacco 1991, criticising the efforts to legitimise the comparative legal discipline from its practical utility. Schnapper 1992, p. 12. Immigration to southern Europe is in fact often perceived as constituting a specific pattern. ‘‘Both the geographical types and mechanisms differentiates it from earlier European migrations – the overseas settlement of Europeans in the new world, the mass migration of Mediterranean labour migrants to industrial Europe in the postwar decades, or the immigration of persons from former colonial territories in the Caribbean, Africa and South Asia’’ . . . ‘‘The new immigration flows to Mediterranean Europe have to be understood within the globalisation, politicisation and ‘illegalisation’ of migration . . . as well as within the Southern European model of economic and social development’’ (King 1999, p. 19). 35 BVerfGE 382, Beschluss des Ersten Senats vom 18. Juli 1973. Decisions of the Federal Constitutional Court have no case names. They are quoted and identified with two numbers, the first number refers to the volume in which the decision is published, and the second number to the page on which the decision starts. However, it should be noticed that this decision also represents the first substantial recognition of constitutional protection to aliens (see later, on emergent rights). It is precisely in decisions like this one (see also 49 BVerfGE 168, Beschluss des Ersten

24. 25.

26. 27.

28.

Senats vom 26. September 1978 -1 BvR 525/77), in which the seed for a new constitutional status for aliens is to be found, where the Court seemed to paradoxically state this principle with particular emphasis, in a way, thus, reassuring the maintenance of the official position: the non-existence of a right of entry and permanence. This fear, which the Court might therefore be seeking to appease, was actually clearly evoked by an important sector of academic writers, concerned about the consequences that the recognition of such a protection might have, in terms of a massive increase in immigrant arrivals. See for instance Petzcke 1974 and Schwabe 1974. For an analysis and critique of such reactions, see Pietzcker 1975, pp. 435 and ff. and Franz 1974, pp. 1810. The right of asylum is directly recognised in Article 16(a) of the Basic Law (hereinafter BL). See, in this sense, 49 BVerfGE 168, Beschluss des Ersten Senats vom 26. September 1978 -1 BvR 525/77, in which the Federal Constitutional Court, some years later, developed further this reasoning. The decision involved this time a construction worker from India. See also 76 BVerfGE 1, Beschluss des Zweiten Senats vom 12. Mai 1987, -2 BvR 1226/83, 101, 313/84, 76 BVerfGE 47. 35 BVerfGE 384. This possibility was foreseen in Article 7 of the 1965 Aliens Act and in Articles 12 and 14 of the 1990 Aliens Act. See in this sense 56 BVerwGE 254, Urteil des Ersten Senats vom 27. September 1978 – 1 C 48/77 (Kassel). The Federal Administrative Court argued here that once the legitimacy of the discretionary prerogatives of the administration in the concession of entry and permanence permits has been admitted, the possibility of imposing further conditions to that permanence should not even be questioned. See also, more generally, in relation to Article 7 of the 1965 Aliens Act and the imposition of conditions to the stay of the alien 36 BVerwGE 45, Urteil vom 20. August 1970 -IC 55.69 (VGH Mu¨nchen) and 49 BVerwGE 36, Urteil des Ersten Senats vom 1. Juli 1975 – I C 35.70 (OVG Mu¨nster), which refer respectively to the possibility of restriction of the exercise of an economic activity and of the conditions of permanence. In relation to the 1990 Aliens Act, see, on this question, BVerwGE, Urteil vom 19. Ma¨rz 1996 -1 C 34.93. The 1965 Aliens Act, Ausla¨ndergesetz vom 28. April 1965, Bundesgesetzblatt I 353 (hereinafter 1965 Aliens Act) served as the governing statute from 1965 through the end of 1990. It was superseded in 1991 by a new aliens act, enacted 9 July 1990. See Gesetz zur Neuregelung des Ausla¨nderrechts, 1990, Bundesgesetzblatt I 1354 (hereinafter 1990 Aliens Act), reprinted in Renner and Kanein 1999. Since 1st January, 2005, there is a new text in force (now under the title ‘‘Immigration Act’’): Gesetz zur Steurung und Begrenzung der Zuwanderung und zur Regelung des Aufenthalts und der Integration von Unionsbu¨rgern und Ausla¨ndern (Zuwanderungsgesetz) vom 30. Juli 2004, Bundesgesetzblatt I 1950. The reform of the 1965 Act had in fact been long claimed by the scholars and law practitioners. Essentially, they criticised the vague and general terms of the Act which thus resulted in very wide prerogatives for the administration and, therefore, in a situation of legal uncertainty for aliens. An answer to this situation was however anticipated by the courts. In this sense, the 1990 Act, rather than an innovation of the normative framework, represented a codification of what the courts had already consolidated in practice. For this reason, the judicial decisions that will be analysed here refer essentially to the period during which the Act of 1965 was in force, which is when the courts played a fundamental role in the definition of aliens law, by progressively setting limits to the executive. Although the courts have proceeded, after the reform, with their activity of control of the administration, they have not introduced major innovations with respect to its former case law. In this sense, the court decisions

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31.

32. 33.

34.

concerning the period after the enactment of the 1990 Act are of minor interest here – in number and importance – and are indicated in order to show how the courts have to a large extent essentially limited their intervention to confirm the principles that they had already set with respect to the previous Act. A new act was however enacted in 2002, but the Federal Constitutional Court ruled against it on procedural grounds (BVerfGE, Beschluss vom 18. Dezember 2002 -2 BvF 1/02). For an analysis of this decision, see Becker 2003 and Arndt and Nickel 2003. The enactment of a new act was the object of serious debate among the German political parties and only finally accomplished in July 2004. BVerwGE, Beschluss vom 29. August 1972 -I B 51.72 (BayVGH). Treu und Glauben constitutes a private law principle that, due to its major significance, has been extended to all legal areas. It proclaims the necessity of protection of the good faith and reliance of each of the parties involved in a legal relationship. It is here to be noticed that the Federal Constitutional Court used this principle, a few years later, in order to justify the recognition of a right to permanence for aliens. See later in the analysis of the so-called emergent rights. In this decision, though, the Court argued that the permanence of the alien during a period of nearly nine years did not necessarily entitle the alien to the renewal of the permit. As one of the last decisions of implementation of the 1965 Act, see for instance BVerwGE, Beschluss vom 31. Oktober 1991 -1 B 111. 91, in which the Federal Administrative Court confirmed the order of expulsion of a Turkish national after 25 years of residence, by arguing that the period of permanence is in itself not determinant of the legitimacy of the measure. In relation this time to the 1990 Aliens Act, see BVerwGE, Beschluss vom 24. Januar 1994 -1 B 2. 94, in which the Court stated that the obligation of return to the countries of origins is legitimate in the case of aliens admitted for study purposes, irrespective of the period of time they have resided in Germany. BVerwGE, Beschluss vom 27. Februar 1962 -I C 114.59. For an evaluation of the Court’s reasoning at the time, see Franz 1970, who argued that when compared to other areas, the decisions of the Federal Administrative Court in the field of immigration appeared as particularly restrictive. See BVerwGE, Urteil vom 18. Dezember 1969 -I C 33.69 (Bayerischer VGH) and 36 BVerwGE 45, Urteil vom 20. August 1970 -IC 55.69 (VGH Mu¨nchen). The Federal Constitutional Court had moreover declared, some months earlier, the need to set general limits to the administrative discretionary prerogatives (BVerfGE, Beschluss des Zweiten Senats vom 17. Februar 1969). More generally, on the evolution of the notion of discretionary prerogatives in the administrative case law, see Rittstieg 1971. This reasoning ultimately forces the German national to choose between two fundamental rights: the right to marriage and family protection – which is recognised in Article 6 BL – and the right to freedom of movement – which is recognised in Article 11 BL. The national was thus obliged to opt between staying in her country thereby renouncing a life together with her partner, or giving up the possibility of living in her own country in order to preserve the marriage. The Federal Administrative Court did however correct this case law some years later (see 42 BVerwGE 133, Urteil des Ersten Senats vom 3. Mai 1973 -I C 33.72 (OVG Berlin)). It finally acknowledged the prejudice that the expulsion necessarily occasions for the marriage, and also recognised that, in the case of the national affected by this measure, the execution of the expulsion unavoidably implies the violation of one of these two fundamental rights. In fact, this initial position had received severe criticisms in the academic literature. See, among others, Schnapp 1974 and, more generally, Zuleeg 1974, p. 347. A fundamental critique raised by this scholarship was in fact the sexual discrimination implicit in this case law. For a doctrinal discussion of

35.

36. 37.

38.

39. 40.

41.

this question between Schickedanz and Rittstieg, see Schickedanz 1972, Schickedanz 1973 and Rittstieg 1972. However, the later case law of the Federal Administrative Court (partly due to the influence of the case law of the Federal Constitutional Court on gender equality) clearly rejects its early view on this point. See, for instance, BVerwGE, Beschluss vom 18. Juni 1992 -1 B 78. 92, as well as BVerwGE, Beschluss vom 15. September 1994 -1 B 214. 93, in relation to the concession of a permanence permit to the spouse of an alien resident in Germany. BVerwGE, Beschluss vom 6. Mai 1983 -1 B 58/83 (Mannheim). Article 4 BL reads in relevant part: ‘‘(1) Die Freiheit des Glaubens, des Gewissens und die Freiheit des religio¨sen und weltanschaulichen Bekenntnisses sind unverletzlich; (2) Die ungesto¨rte Religionsausu¨bung wird gewa¨hrleistet.’’ See also in this sense a more recent decision of the Federal Administrative Court, concerning the case of denial of entry to the (Korean) leader of a religious movement. His entry had been requested in order to give a conference in Frankfurt am Main, organised by the German section of the movement. According to the reasoning given by the administration, the notification by another EU Member State of this individual’s details on the Schengen Information System (SIS) justified the refusal of the permit (BVerwGE, Urteil vom 10. Juli 2001 -1 C 35.00). The SIS contains information entered by Schengen Contracting Parties on persons whose admission to the territory of the Schengen states is to be refused. 35 BVerfGE 400. The main critique to the Federal Constitutional Court during all the years of validity of the 1965 Aliens Act was actually the fact of not having censured the very general terms of the act, which was interpreted as implicitly legitimising a delegation by the legislator to the executive. The law’s lack of definiteness necessarily resulted in extremely wide administrative prerogatives. The reform of the Act was indeed the general claim among scholars. See, among others, Franz 1974, Gusy 1979, Heinrich 1987, Rittstieg 1971, Tomuschat 1980, Weber 1979, and Zuleeg 1973. On the opposite stand, though, see, for instance, Kanein 1973, insisting on the ultimately political, and not legal, nature of this question, or Menger 1974, arguing the need of flexibility for the administration. See also Schnapp 1973, rejecting the qualification of entry and permanence in the territory as fundamental rights and, thus, opposing to transfer here the reasoning held by the Federal Constitutional Court in relation to such rights (20 BVerfGe 150, zum Sammlungsgesetz). This had been in fact defended by Zuleeg (Zuleeg 1973, p. 361). For Zuleeg’s response to Schnapp, see Zuleeg 1974. In any case, notwithstanding certain minority positions (such as Zuleeg’s), most of the academic literature considered that a reform of the law could never alter the fundamental premise implicit in the general system, i.e. the non-existence of a right of entry and permanence for aliens. See in this sense Tomuschat 1980, p. 1073. This is the question underlying the whole political debate that has been taking place in recent years in Germany and that surrounded the enactment in 2002 of a new act, which, as already mentioned, was eventually annulled by the Federal Constitutional Court on procedural grounds (see above, note 28). Besides the establishment of a system of recruitment of skilled workers – which is what has represented the so-called Green Card programme launched in 2000 by Chancellor Gerhard Schro¨der to attract workers skilled in information technology, other political forces such as the Green Party call for the official recognition, for the first time, of Germany as a country of immigration. The reform process initiated with the 2002 Act was finally completed after two years of political negotiation which significantly altered its original purpose. As expressed already in its title the Immigration Act of 2004 relates to the ‘‘control and restriction of immigration’’. Finally, The Green Party remained outside the political agreement that made possible the approval of the definitive text.

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42. See in this respect the view expressed by political representatives of the German official stand such as Scho¨nbohm 1997 or Bosbach 2000, as well as by scholars like Heinrich 1987, or Uhlitz 1987. Many academic writers have played a role in this political evolution such as Hailbronner 1990. Other scholars, though, have opposed this view: see Zuleeg 1980a, or Zuleeg 1987, in response to Uhlitz. 43. According, for instance, to the analysis undertaken by Rogers Brubaker of France and Germany as two antagonistic kinds of nationhoods, Germany could be defined as Volk-centered, pre-political or ethnocultural, and differentialist, whereas France would be institutionalist, political and assimilationist (Brubaker 1989). Politicisation of nationhood in the pre-Revolutionary France coincided with depoliticisation of Germany in the late eighteenth-century. The German tradition of nationhood was formed by the Romantic movement on the one hand (i.e. ethno-national), and the Prussian reform movement on the other (i.e. state-national). Likewise, German and French nationhoods also differ in their definitions of citizenship. German citizenship law was restrictive toward non-Germans, while French, confident in transforming immigrants into French men and women, was expansionist toward immigrants. For a revision of these categories propounded by Brubaker, see Gosewinkel 1995 and Fahrmeir 1997. 44. For a political analysis of Germany’s process of reception of immigration and of its unwillingness to acknowledge itself as an immigration country, see Martin 1994. Likewise, see Hailbronner 2000a, Thra¨nhardt 1999, and Heintzen 1997. 45. See for instance the above referred (see note 29) decision of 1972 (BVerwGE, Beschluss vom 29. August 1972 -I B 51.72 (BayVGH)). Although to a lesser extent, this reasoning is also present in the more recent case law. See, for instance, the following decision of the Federal Administrative Court, in relation to the permanence of minors in the German territory: BVerwGE, Beschluss vom 24. Januar 1994 -1 B 181. 93, in which the Court insisted on the need to consider how the interests and circumstances of the host country are affected by the conferral of the residence permit. According to the Court, given the increasing unemployment rate and the social problems that the integration of aliens represents, Germany’s capacity for reception of aliens is limited. Indeed, after the 1990 reform, the entry and permanence of alien minors represents one of the major topics in the case law of the Court in the sphere of immigration. 46. See 38 BVerwGE 90, Urteil vom 29. April 1971 -I C 7/69 (Mu¨nster). In fact, the Court explicitly expressed this view at a particularly critical period: two years before the political decision to stop any new entries of aliens (Anwerbestopp of 1973), at a time when immigrant workers were still not really settled. 47. Nevertheless, as observed above (see note 23) in relation to the Federal Constitutional Court, these general statements should be interpreted as a way of reassuring the maintenance of the official stand towards immigration, rather than as imposing a particularly restrictive trend. It is precisely in decisions like this one that the Federal Administrative Court started extending constitutional protection to aliens. See, also, in this sense: 38 BVerwGE 90, Urteil vom 29. April 1971 -I C 7/69 (Mu¨nster), 42 BVerwGE 148, Urteil vom 3. Mai 1973 -I C 35.72 (OVG Mu¨nster) and 56 BVerwGE 254, Urteil des Ersten Senats vom 27. September 1978 – 1 C 48/77 (Kassel). 48. With respect to the time of the Anwerbestopp, the circumstances that surrounded this further moment of debate are indeed different, the perception of immigration by German society being already very different from the one prevailing in the early seventies. The reality of immigration was in fact no longer a matter of discussion. To a certain extent, Germany had by then admitted immigration as a fact and the question at stake was rather a different one: the effective integration of immigration in Germany’s political and constitutional structures.

49. Both Acts of 27 February 1989 (Gesetz- und Verordnungsblatt I, Nr. 7, pages 12 and 29, respectively). 50. For years German legal scholarship was involved in a serious debate concerning the possibility of extending this type of rights to aliens, although the discussion had always been limited to the local level. According to an important element of the legal scholarship, the text of the BL does not express any particular view in that respect, thereby allowing for the extension of political rights by the legislator. In their view, the effective recognition of these rights would constitute the culmination of a whole process of integration and incorporation of the aliens into the society of reception. The contrary would actually signify the violation of the principle of democratic representation and legitimisation, since it effectively excludes a whole and growing community of permanent non-national residents from the decision-making process of norms that directly concern them. See, for instance, in this sense Dolde 1973, Ruland 1975, Zuleeg 1974, Zuleeg 1980a, and Zuleeg 2000. See, however, Karpen 1989 and Sto¨cker 1989, who essentially argue that only a reform of the BL would allow for the extension of this type of rights to aliens. Their fundamental argument is the impossibility of including aliens in the notion of Volk, as referred to in Article 20.2 BL, to which in turn Article 28.1 refers to, on elections at the infra-federal level. This is actually also the argument used by the Federal Constitutional Court in its 1990 decision, which to a certain extent closed this lengthy doctrinal debate (see later). 51. 83 BVerfGE 37, Urteil vom 31. Oktober 1990 -2 BvF 2, 6/89 and 83 BVerfGE 60, Urteil vom 31. Oktober 1990 -2 BvF 3/89. 52. See in this sense Zuleeg 2000, arguing that the really significant aspect of this decision is the Court’s refusal to admit the thorough transformation that Germany has undergone through immigration. 53. Article 28.1 BL: ‘‘Die verfassungsma¨ßige Ordnung in den La¨ndern muß den rundsa¨tzen des republikanischen, demokratischen und sozialen Rechtsstaates im Sinne dieses Grundgesetzes entsprechen. In den La¨ndern, Kreisen und Gemeinden muß das Volk eine Vertretung haben, die aus allgemeinen, unmittelbaren, freien, gleichen und geheimen Wahlen hervorgegangen ist. Bei Wahlen in Kreisen und Gemeinden sind auch Personen, die die Staatsangeho¨rigkeit eines Mitgliedstaates der Europa¨ischen Gemeinschaft besitzen, nach Maßgabe von Recht der Europa¨ischen Gemeinschaft wahlberechtigt und wa¨hlbar. In Gemeinden kann an die Stelle einer gewa¨hlten Ko¨rperschaft die Gemeindeversammlung treten.’’ Article 20.2: ‘‘Alle Staatsgewalt geht vom Volke aus. Sie wird vom Volke in Wahlen und Abstimmungen und durch besondere Organe der Gesetzgebung, der vollziehenden Gewalt und der Rechtsprechung ausgeu¨bt.’’ Article 38.1: ‘‘Die Abgeordneten des Deutschen Bundestages werden in allgemeiner, unmittelbarer, freier, gleicher und geheimer Wahl gewa¨hlt. Sie sind Vertreter des ganzen Volkes, an Auftra¨ge und Weisungen nicht gebunden und nur ihrem Gewissen unterworfen.’’ 54. In the view of the Court, the extension of voting rights to aliens constituted a violation of Article 28.1 in relation to Article 20.2 BL. As the Court affirmed, according to the principle of national sovereignty, all political power emerges from the nation (Volk) and is exercised directly by it in elections, as well as, otherwise, through the specialised constitutional authorities (executive, legislative and judiciary). Article 20.2 would express the meaning of Volkssouveranita¨t: the impact of the nation in the exercise of public power. Likewise, according to Article 28.1, this principle should also have its reflection in the sphere of La¨nder, districts (Kreisen), municipalities (Gemeinde) and district assemblies (Bezirkversammlungen), where, in the view of the Court, the exercise of public power is in the same way inextricably involved. Kreisen, Gemeinde and Bezirkversammlungen represent the spheres where the voting rights for aliens were intended to be recognised. Following this reasoning, in order to

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56.

57.

58. 59.

60.

61.

extract a precise meaning of the term Volk, the Court then proceeded to a systematic interpretation of the different constitutional provisions, referring in particular to Article 116.1 BL (‘‘Gesamtheit der im jeweiligen Wahlgebiet ansa¨ssigen Deutschen’’). From this point of view, since the exercise of public power (Staatsgewalt) needs to be democratically legitimised, and given that this is particularly relevant in the field of elections, the Court concluded that only nationals are entitled to participate in them. The extension of voting rights to non-nationals was thus declared unconstitutional, since it does not possess the necessary degree of democratic legitimisation. It is interesting to observe that the Court, in this decision, added a final remark concerning the European Community (see 83 BVerfGE 59). The Court simply insisted on the difference between the two cases, leaving thus open the possibility of a future extension of voting rights to the nationals of Member States. There is however increasing opposition to this mechanism of integration of aliens. Essentially, they argue that aliens are in this way forced to give up their own citizenship and, thus, to renounce the ties with their country of origin. The German system would be especially rigid in this respect, given its traditional and clear rejection of dual citizenship. This may partially explain the still low figures of the naturalisation’s rate in Germany despite the introduction of more flexible administrative criteria in this sphere (see Karpen 1989, p. 1017). Also critical towards the lack of consideration of alternative ways of integration, see, among others, Zuleeg 1980b, p. 427, who affirms the right of the alien to chose to preserve his/her own nationality and refuse the German one. Likewise, see, Zuleeg 1974, p. 349, who sustains that the text of the Constitution cannot be used as an argument to justify the mechanism of naturalisation as the only way of integration. More generally, for a comprehensive and comparative reflection on the reasoning of the courts (German and American) in relation to the integration of aliens through the acquisition of citizenship, see Rubio Marı´n 2000. Article 2.1 of the 1965 Aliens Act, on entrance of aliens: ‘‘ . . . Die Aufenthaltserlaubnis darf erteilt werden, wenn die Anwesenheit des Ausla¨nders Belange der Bundesrepublik Deutschland nicht beeintra¨chtigt.’’ Article 10 provided the grounds for deportation of aliens: (1) ‘‘Ein Ausla¨nder kann ausgewiesen werden, wenn’’ (1.11) ‘‘seine Anwesenheit erhebliche Belange der Bundesrepublik Deutschland aus anderen Gru¨nden beeintra¨chtigt.’’ 35 BVerfGE 382, Beschluss des Ersten Senats vom 18. Juli 1973 and 49 BVerfGE 168, Besch luss des Ersten Senats vom 26. September 1978 -1 BvR 525/77. The reasons for deportation listed in Article 10 included, inter alia, criminal convictions, tax violations, infractions under the Aliens Act itself, mental illness, endangerment of public health and morals, and inability to support themselves and their dependants. In order to sustain this reasoning (35 BVerfGE 400), the Federal Constitutional Court referred to the precedent Elfes case of 1957 (6 BVerfGE 32, Beschluss des Ersten Senats vom 16. Januar 1957) in which the Court had avoided declaring unconstitutional the general clause of the Act on passports, by deducing, from the rest of the text, the precise content of the clause. However, the case of Article 10 of the 1965 Aliens Act seemed different. The list of cases foreseen in it was not homogeneous or systematic to the extent of allowing a deduction of the precise meaning intended with the expression ‘‘harm to national interests’’. See, in this sense, Rittstieg 1974, p. 261, or Franz 1974, p. 1810. It is interesting in this respect to observe the evolution in the reasoning of the courts. For instance, in the decision of 30 December 1993, the Federal Administrative Court affirmed the constitutionality of the general clause on deportations foreseen by the 1990 Aliens Act, by confronting it with what the Court then qualifies as the wide and

62.

63. 64.

65. 66. 67. 68. 69.

70.

71. 72. 73.

general terms of the 1965 Act. In the view of the Court, in contrast to the situation resulting from the 1965 Act, the terms of the new Act of 1990 were definite enough so as to set clear guidelines for the administration (BVerwGE, Beschluss vom 30. Dezember 1993 -1 B 185.93). Indeed, in response to the strong critiques to the 1965 Act, the 1990 reform introduced a gradual system of deportations in order to predefine the action of the administration. Nevertheless, severe critiques of this Act are also to be found in the legal scholarship. See, for instance, Hailbronner 1995, who argued that the strong complexity of the Act finally makes the achievement of legal certainty as was expected from the reform all but possible. 35 BVerfGE 400-401. The Federal Constitutional Court has continued in later cases to measure the justification for deportation against these standards. However, the Court refused on this occasion to analyse whether the administration had correctly balanced the various factors in reaching its decision (Abwa¨gung). The Court argued that this should have been done in the principal process, since this holding (brought before the Court as a constitutional complaint) involved only an incidental question: the possibility of suspension of the deportation order, and not invalidation of the order itself. 49 BVerfGE 181-182. See, in particular, Gusy 1979, who refers to the decision of 26 September 1978, in order to analyse the evolution and precise definition by the Federal Constitutional Court of this principle in relation to the more specific sphere of immigration. Article 20.3 BL: ‘‘Die Gesetzgebung ist an die verfassungsma¨ßige Ordnung, die vollziehende Gewalt und die Rechtsprechung sind an Gesetz und Recht gebunden.’’ See, in this sense, critique raised by the scholarship, as illustrated by the analysis of Christoph Gusy (see note above). 49 BVerfGE 168, Beschluss des Ersten Senats vom 26. September 1978 -1 BvR 525/77. 49 BVerfGE 181. See also in this sense, the following decision of practically the same date: 56 BVerwGE 254, Urteil des Ersten Senats vom 27. September 1978 – 1 C 48/77 (Kassel). In this, the Federal Administrative Court, confirming the Federal Constitutional Court’s legitimisation of the Aliens Act, also sustained the impossibility of specifying in advance the precise content of the Bestimmtheitsgebot’s requirement. As in the case of the Federal Constitutional Court, the Federal Administrative Court argued here that the complexity and diversity of the elements involved in the field of immigration made the specification of the precise criteria necessary, case by case, and by the administration only. See Gusy, p. 577, pointing the fact that whereas Article 10.1.1 of the 1965 Aliens Act, on deportations, used the expression ‘‘substantial national interests’’, in the case of according the right to enter, Article 2.1 just referred to ‘‘interests’’. See 35 BVerfGE 382-409. See Gusy, pp. 577-579. The conferral of wide prerogatives on the judiciary also gave scholars cause for concern. Interestingly, the arguments held in this respect reflect very different positions in relation to immigration. See, for instance, Heinrich 1987, p. 985, who considers that the main risk of too broad a formulation of the law is the invasion by the judiciary of the competence sphere of other public authorities. This analysis assumes a perspective critical to the active role represented by the German courts in the construction of immigration law. More generally, see Ossenbu¨hl 1970, p. 86, insisting on the need for administrative discretionary prerogatives, by arguing that the courts alone cannot compensate for the abstract and general character of the law.

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75.

76.

77.

In his view, the courts do not posses the democratic legitimacy or material means for doing that. From a different point of view, see, also Franz 1974, p. 1811, who insists on the necessity of delimiting in detail the possibilities of intervention of the courts, in order to avoid denaturalising constitutional principles such as the proportionality one. Moreover, Franz argues that although the courts’ intervention often leads to an improvement of the protection of aliens, this may not always be the case. Also in this sense, see Rittstieg 1974, p. 262. On the material impossibility to compensate, through the courts, for the lack of definiteness, see Tomuschat 1980, p. 1075. In effect, the only occasion for the Federal Constitutional Court to intervene in the implementation of the law is in cases of constitutional complaint (see Article 93.I. 4a and 4b of the Grundgesetz and Articles 90-95 of the Gesetz u¨ber das Bundesverfassungsgericht). Its other mechanisms of intervention are limited to the abtract control of the law, concerning complaints alleging that a given legislative act is not in conformity with the Constitution (see Article 93.I.2 of the Grundgesetz and Articles 76-79 of the Gesetz u¨ber das Bundesverfassungsgericht, on the so-called abstrakte Normenkontrolle, as well as Article 100 of the Grundgesetz and Articles 8082 of the Gesetz u¨ber das Bundesverfassungsgericht, which regulate the konkrete Normenkontrolle). For a more detailed analysis of these mechanisms, see later in chapter 6. See, for instance, BVerfGE, Beschluss vom 22. August 1983 – 2 BvR 1193/83, in Berkemann 1983, p. 568. More generally, on the respect of the requirements set by the 1990 Act for the authorisation of the first entry, see BVerwGE, Beschluss vom 2. Dezember 1994 -1 B 123.94. See, for instance, in this sense, Schnapp 1974, p. 89, in relation to a decision of the Federal Administrative Court (42 BVerwGE 133, Urteil des Ersten Senats vom 3. Mai 1973 -I C 33.72 (OVG Berlin)) in which the Court legitimised the use of preventive arguments in order to expel aliens. The author actually proceeds here to a general critique, arguing that the execution of deportation orders after the fulfilment of prison sentences represents a double jeopardy for aliens. See for instance 50 BVerfGE 166, Beschluss des Ersten Senats vom 17. Januar 1979. In this case, the Federal Constitutional Court formulated a robust defence of this type of justification of expulsions and explicitly rejected the critiques raised by the scholarship (see Franz 1973, p. 662). According to the Court, the alien is responsible for the imposition of such measures. From this perspective, Article 10.1.2 of the 1965 Aliens Act (on the causes of expulsion) should ultimately represent an incentive not to commit crimes. For confirmation of this reasoning, see BVerfGE, Beschluss vom 13. Juni 1983 – 2 BvR 779/83. The logic of aliens’ own responsibility was also assumed by the Federal Administrative Court (BVerwGE, Urteil vom 2. Februar 1979 – 1 B 238.78 (VGH Mannheim)). In this decision, the Court also argued that the expulsion is based on the material commission of the crime and not on its mere eventuality. However, according to the Court, the expulsion is not a measure directed to the punishment of the crime, but to the prevention of new perpetrations and, thus, to the preservation of public order. From this point of view, the mere general or vague threat for the public order can sometimes be enough. A specific danger of recidivism is therefore not necessary. On this last point, see also 60 BVerwGE 75, Urteil des Ersten Senats vom 26. Februar 1980 – 1 C 90/76 (Mannheim), where the Federal Administrative Court continued to delimit criteria concerning the danger of recidivism (Wiederholungsgefahr). In relation to general prevention, the Court stated that a continued administrative practice is necessary. From this perspective, expulsion measures would meet the double objective of preserving public order and of delimiting clear criteria for the admission and permanence of aliens (Verhaltenssteuerung). The later decisions of the courts confirms this reasoning. See for instance BVerwGE, Beschluss vom 31. Oktober 1991 -1 B 111. 91, as one of the last

78. 79.

80.

81. 82. 83.

84. 85. 86.

87.

88.

89. 90.

decisions of implementation of the 1965 Aliens Act, in which the Court confirmed an expulsion of an alien who had been residing in Germany for more than twenty-five years, on the basis of reasons of general prevention. Indeed, the 1990 Act also contains this principle. See, in this sense, BVerwGE, Beschluss vom 10. Januar 1995 -1 B 153.94 or BVerwGE, Urteil vom 26. Februar 2002 -1 C 21/00. See, for instance, BVerwGE, Urteil vom 27. September 1978 -1 C 28.77 (VGH Kassel). 38 BVerwGE 90, Urteil vom 29. April 1971 -I C 7/69 (Mu¨nster). In this decision, the Federal Administrative Court defined the fundamental criteria relating to permanence permits, proceeding to a definition of the term immigration. In the view of the Court, no real will of permanent stay is required from the alien in order to be qualified as immigrant. The later case law of the courts, in implementation of the 1990 Act, confirms this general approach. See, for instance, BVerwGE, Urteil vom 29. Juli 1993 -1 C 25. 93, in which the Court legitimated the possibility, foreseen in the law, of ordering the deportation of an alien, on the grounds of its perception of social benefits. Likewise, in relation to the permanence of minors in Germany, see, also, BVerwGE, Beschluss vom 24. Januar 1994 -1 B 181. 93, in which the Court affirmed the need to consider Germany’s economic situation, as well as BVerwGE, Urteil vom 18. November 1997 -1 C 22. 96 and BVerwGE, Beschluss vom 24. Ma¨rz 1998 -1 C 5. 96, on the necessity of evaluating the real possibilities of integration. See, in this sense, Schuster 1976. 56 BVerwGE 254, Urteil des Ersten Senats vom 27. September 1978 – 1 C 48/77 (Kassel). See Rittstieg 1971, p. 115, who denounces how the administration, in its implementation of the general clause of national interests, seemed to depart from the assumption that an actual national interest existed in avoiding the permanent settlement of aliens. See section II of precarious rights. See section III of precarious rights. The Court was in this way exempted from what ultimately constitutes, on those other occasions, an evaluation of the legislator, which is necessarily imbued with political implications. This is particularly so in contentious areas such as immigration. See, in this sense, Article 1 BL: ‘‘(1) Die Wu¨rde des Menschen ist unantastbar. Sie zu achten und zu schu¨tzen ist Verpflichtung aller staatlichen Gewalt; (2) Das Deutsche Volk bekennt sich darum zu unverletzlichen und unvera¨ußerlichen Menschenrechten als Grundlage jeder menschlichen Gemeinschaft, des Friedens und der Gerechtigkeit in der Welt; (3) Die nachfolgenden Grundrechte binden Gesetzgebung, vollziehende Gewalt und Rechtsprechung als unmittelbar geltendes Recht.’’ For instance, in the 1965 Aliens Act, deportation orders were established as possibly implying an undetermined prohibition of entrance in the territory. Article 15 of the Act regulated however the possibility of limiting in time this effect. See, also in this sense, Article 8.2 of the 1990 Aliens Act. 35 BVerfGE 382, Beschluss des Ersten Senats vom 18. Juli 1973. The consecration of the principle of proportionality in this decision set the basis for the subsequent case law. The regulation of expulsions in the 1990 Aliens Act is a reflection of the Court’s reasoning. In the system officialised by the 1990 Act, the discretionary margins left to the administration vary according to the specific circumstances in each case (Articles 45-47 of the 1990 Act). Three categories of expulsions are thus foreseen (Ist-, Regel-, und Kann-Ausweisung). On the delimitation of these categories, see, BVerwGE, Beschluss vom 1. September 1994 -1 B 90.94 and,

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91. 92.

93. 94. 95.

96. 97. 98.

99.

100.

101. 102. 103.

more explicitly, in relation to the principle of proportionality, BVerwGE, Beschluss vom 21. August 1997 -1 B 160/97. See, however, analyses of the legal scholarship, such as Oldenburg 1999, in which it is argued that, in practice, this distinction is not actually respected by the administration, the courts not having been rigourous enough in their control. See 35 BVerfGE 402 and ff. Compare with the opposite solution given by the Federal Constitutional Court in an early and very similar case (34 BVerfGE 211, Beschluss des Ersten Senats vom 24. Januar 1973). 35 BVerfGE 404. For an evolution of this notion, see 69 BVerfGE 220, Beschluss des Zweiten Senats vom 21. Ma¨rz 1985 -2 BvR 1642/83. Furthermore, the Federal Constitutional Court averred that these prejudices for the deported alien actually become greater, due to the delays normally existing in the main process. The Court insisted thus on the constitutional character of the right to due process and of the corresponding state obligation of enactment of judicial solutions in due time (35 BVerfGE 405). 35 BVerfGE 405-406. 35 BVerfGE 406. However, in relation at least to the specific sphere of immediate execution, the precise content and degree of this obligation remained uncertain after this decision. See, Dolde 1974, p. 1043, and Meissner 1979, p. 27. See, for instance, 61 BVerwGE 105, Urteil des Ersten Senats vom 21. Oktober 1980 -1 C 19/78 (Mu¨nchen), as an example of the continuation by the Federal Administrative Court of the technique of balancing introduced by the Federal Constitutional Court in the Arab case decision. In this decision concerning an expulsion, the Court required a more precise definition of the expression ‘‘harm to national interests’’. According to the Court, the existence of a current prejudice is not enough; it is necessary that the alleged prejudice for the state implies consequences for the future. Legislative exceptions to this scheme are directly foreseen in the main Act on administrative courts (Verwaltungsgerichtsordnung, vom 21. Januar 1960 (BGBl. I 17), Neufassung vom 19. Ma¨rz 1991, BGBl. I 686). Examples of this are urgent measures adopted by the police and directed to maintain security and public order. Other exceptions can be established in federal acts, as was foreseen in Article 21.3 of 1965 Aliens Act. This general scheme has sometimes been criticised for causing an excessive paralysis of the action of the administration. For this reason, the suspensive effect was suppressed in 1992 for the specifc sphere of asylum law. Most relevant, though, is the possibility that the administration has in any case to order immediate executions, thus neutralising the rule of suspension. This decision has to be motivated (except in cases of extreme urgency) and needs to be justified by a public or major private interest. Once the suspensory effect has been suppressed, it can however be reestablished, either by the same administrative authority, or by the administrative court, before dealing with the principal pending process. In any case, according to the Federal Constitutional Court, the administrative suppression of the suspensive effect has to remain the exception. This value had been already affirmed in its previous case law. See 35 BVerfGE 263 [272]. 35 BVerfGE 401. Article 19.4 BL: ‘‘Wird jemand durch die o¨ffentliche Gewalt in seinen Rechten verletzt, so steht ihm der Rechtsweg offen. Soweit eine andere Zusta¨ndigkeit nicht begru¨ndet

104. 105.

106.

107.

108.

109.

110.

111.

ist, ist der ordentliche Rechtsweg gegeben. Artikel 10 Abs. 2 Satz 2 bleibt unberu¨hrt.’’ The legal reception of this principle is to be found in Article 80 of the Verwaltungsgerichtsordunung. See section III on precarious rights. This was in fact the interpretation of this decision given by different scholars. See, for instance, Franz 1974, p. 1810, and Pietzcker 1975, p. 438, referring (critically) to Menger 1974. From their point of view, the introduction of proportionality would represent a rejection of the Federal Administrative Court’s general use of deportation under the finality of intimidation and general prevention from commitment of crimes (see, for instance, 35 BVerwGE 291, Urteil des Ersten Senats vom 16. Juni 1970 – I C 47.69 (VGH Mannheim)). Although the Federal Constitutional Court did not explicitly condemn the use of such arguments, it would be possible to conclude from its reasoning a rejection of this principle, at least for the more limited field of immediate execution. In effect, the Court required the real existence of a relevant and specific danger in order to allow the administrative execution. The requirements are therefore stricter in the case of immediate execution, since, as the Court reasoned, the consequences can in such circumstances be more definitive than the deportation order itself, despite the only preventive nature of the measure of immediate execution. Moreover, according to Pietzcker, the Court also rejected, for the case of immediate execution, the criterion, until then generally admitted, of the manifest legality of the expulsion (offensichtliche Rechtma¨ssigkeit der Ausweisung). However, also according to this author, the precise definition of this notion remained unclear in its later case law (see 38 BVerfGE 52, Beschluss des Ersten Senats vom 16. Juli 1974). For a stricter interpretation of the ultimate impact of the Arab case decision, see Meissner 1979, p. 29, who considered that the Court’s rejection of general prevention arguments was only referred to the specific sphere of immediate execution and that it was therefore not possible to draw any further conclusions. Indeed, this decision gave rise to great expectations: see, for instance, Bo¨hm 1974, evaluating the possible consequences of this decision. See, as well, Huber 1974, expressing the view of the administration. See, among others, Rittstieg 1974, p. 261, Tomuschat 1974, p. 764, Zuleeg 1974, p. 343, Pietzcker 1975, p. 439, and Rose 1974, p. 246. On the opposite view, see Meissner 1979, p. 31. In effect, according to Article 80.2.3 of the Verwaltungsgerichtsordnung, the suspensive effect established by Article 80.1 for the review against administrative acts (for both Widerspru¨che – as administrative prejudicial review – and Anfechtungsanklage – as the judicial administrative review), can be neutralised if a federal act establishes the contrary for a specific domain (see above, note 100). This was the case of Article 23.1 of the 1965 Aliens Act. This gave rise, however, to one of the principal critiques of this decision: by not declaring the unconstitutionality of Article 21.3 (and, thus, by not affirming the full validity of the suspensive effect also in the sphere of permanence), the Court would have been implicitly denying the existence of a right to permanence. From that perspective, only aliens already present in the territory would be entitled to some type of protection, due to the more severe consequences of the expulsion. For an analysis, contemporaneous with this case law, of the different possibilities of interim relief resulting from the combination of the provisions of these two Acts, as well as on its precise definition by the administrative case law, see Meissner 1979 and Rose 1971. 34 BVerwGE 325, Urteil vom 18. Dezember 1969 – I C 5.69 (VG Du¨sseldorf).

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112. Article 21.3 of the 1965 Aliens Act established the legal fiction of the provisory authorisation of aliens’ permanence during the period of time between the request of the permit and its administrative response. Once denied, however, the alien was obliged to leave the territory immediately (Article 12 of the 1965 Aliens Act), since the suspensive effect inherent in the review of administrative decisions was suppressed. 113. The Federal Administrative Court proceeded on that occasion to a systemisation of the possibilities of interim relief in the sphere of aliens’ permanence. Among the different mechanisms resulting from the combination of the 1965 Aliens Act and the Verwaltungsgerichtsordnung, two main possibilities appeared: on the one hand, and on a more general basis, the possibility foreseen in Article 123 of the Verwaltungsgerichtsordnung of conferral of positive interim relief directly by the courts (einstweilige Anordnung); on the other, the possibility established in Article 80.5 of the same Act, of reintroducing, through the courts, the suspensive effect that had been neutralised by the law. According to the Court, this last possibility was the one which better suited. This possibility of suspension was often rejected by arguing that such a mechanism could not be used in situations of lack of positive action, as it is the case for denials of permits. The Court, however, opposed this general reasoning on the basis of the particularity of the immigration domain, and thus supported the existence of a positive action in the denial of that specific permit. As the Court argued, the fiction of authorised residence that Article 21.3 of the 1965 Aliens Act created, led to the deprivation from a positive status once the permit was denied. For this reason, the denial of the permit could be understood as a positive action and not merely as a refusal to act. From this point of view, it would be correct to apply Article 80.5 on suspension, instead of Article 123 which is more general. The specific mechanism more suited for aliens would therefore be the Anfechtungsklage, which is addressed against a positive administrative action, in order to obtain its revocation, and not the Verpflichtungsklage, which seeks the effective realisation of a positive action that has been denied by the administration. 114. BVerfGE, Beschluss vom 13. Oktober 1994 -1 BvR 1799/94, in which the Court established that Article 2.1 BL, in connection with Article 1.1 of the same text, obliges the state to confer interim relief in the form of Einstweilige Anordnung. See also BVerfGE, Beschluss vom 6. Dezember 1994 -2 BvR 2084/94, in which the Court, following a similar reasoning, opted for the specific formula of Duldung – which simply suspends the obligation to leave the country on the grounds of humanitarian considerations – as the mechanism of provisional protection. 115. 35 BVerfGE 399. 116. Article 2.1 BL: ‘‘Jeder hat das Recht auf die freie Entfaltung seiner Perso¨nlichkeit, soweit er nicht die Rechte anderer verletzt und nicht gegen die verfassungsma¨ßige Ordnung oder das Sittengesetz versto¨ßt.’’ 117. 6 BVerfGE 32, Beschluss des Ersten Senats vom 16. Januar 1957. 118. The precise question put before the Court on that occasion was whether the possibility of leaving the country was covered by the constitutional right of freedom of movement, which is recognised by Article 11 BL. The Federal Constitutional Court seized the occasion to go beyond that more specific issue and thus resolve the ongoing debate among scholars on the precise content and reach of Article 2.1. 119. A narrow interpretation of this provision was defended by a sector of the scholarship, this being however rejected by the Court for a logical reason: if this provision was to be understood in a narrow sense, the conflict, foreseen by Article 2 BL itself, between this principle and other spheres of the constitutional system would not be possible. 120. The main critique raised by the scholarship to the Court’s position was the vast and vague limit thus put on the freedom of action. See Du¨rig 1957. In Du¨rig’s opinion, and contrary to other views expressed at the time of the enactment of the decision, the idea

121. 122. 123. 124. 125. 126. 127. 128. 129.

130. 131. 132.

133. 134. 135. 136. 137. 138. 139.

140.

of introducing the general clause of constitutional order as a limit to freedom of action does not necessarily neutralise this right. However, according to Du¨rig, the Court should have proceeded to a more precise definition of the content of this notion. See, in this sense, the influent and comprehensive analysis by Isensee 1974. In effect, the Federal Constitutional Court referred explicitly to the reasoning consecrated in the Elfes decision. See 35 BVerfGE 399-400. 35 BVerfGE 401. 35 BVerfGE 407. Freedom of movement is expressly reserved to nationals by Article 11.1 BL (‘‘Alle Deutschen genießen Freizu¨gigkeit im ganzen Bundesgebiet.’’). 35 BVerfGE 399. See, for instance, Zuleeg 1975, as a clear representative of this minority stand. See, for instance, Franz 1974. Indeed, the precise chain of logic steps followed on that occasion by the Court was not completely clear. The relationship, for instance, established by the Court, between Article 2.1 and Article 19.4 was the object of different analyses. See, for instance, Pietzcker 1975, Dolde 1974 Menger 1974, or Weber 1974. From a more general perspective, Article 2.1 would ultimately represent the constitutional parameter to evaluate the action of the public authorities in the immigration field. See section I on emergent rights. See later, in section III. Article 12.1 BL: ‘‘Alle Deutschen haben das Recht, Beruf, Arbeitsplatz und Ausbildungssta¨tte frei zu wa¨hlen. Die Berufsausu¨bung kann durch Gesetz oder auf Grund eines Gesetzes geregelt werden.’’ See later, in section III. Article 6.1 BL: ‘‘Ehe und Familie stehen unter dem besonderen Schutze der staatlichen Ordnung.’’ 19 BVerfGE 394, Beschluss des Ersten Senats vom 1. Ma¨rz 1966. 31 BVerfGE 58, Beschluss des Ersten Senats vom 4. Mai 1971. See Zuleeg 1980b, illustrative of a position of the scholarship on this question. 19 BVerfGE 396. See, for instance, 48 BVerwGE 299, Urteil des Ersten Senats vom 11. Juni 1975 -I C 8/71 (Mu¨nster), where the Federal Administrative Court seemed to start considering the possibility of also conferring protection against deportation orders on non-mixed couples, but only on a very restricted basis. That is, practically, only if children with German citizenship resulted from that marriage. For more explicit justifications by the Federal Administrative Court of that different treatment, see 55 BVerwGE 8, Urteil vom 25. Oktober 1977 – I C 31/74 (Berlin). See also 61 BVerwGE 32, Urteil des Ersten Senats vom 16. September 1980 – 1 C 28/78 (Mu¨nchen), which represents one of the first real expansions of protection to non-mixed couples. Although the Federal Administrative Court insisted on the fact that the protection thus conferred is in no way equal to the one enjoyed by mixed couples, the administration has still to proceed to undertake the balancing test. On this same reasoning, see also, by the Federal Constitutional Court, BVerfGE, Vorpru¨fungsausschuss, Beschluss vom 19. August 1983 -2 BvR 1284/83. Interesting from this point of view is the analysis and critique by Schickedanz 1972, arguing precisely for the need for a German immigration policy that would be grounded on new liberal thinking, independent of the traditional focus on the national

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142.

143. 144.

145.

146.

partner. The author sustained that it was no longer admissible to construct general premises on the basis of restricted grounds, as is the case of mixed couples. Likewise, for a critique of this subordination imposed by the courts and, in particular, by the Federal Administrative Court on that occasion, of aliens’ family protection to the existence of a national partner, see Schnapp 1974. See, for instance, BVerfGE (3. Kammer des Zweiten Senats), Beschluss vom 12. Dezember 1989 -2 BvR 377/88, for an example of how the Federal Constitutional Court maintained, in its later case law, the prevalence of mixed couples in its conferral of protection, although Article 6.1 BL had by then been expressly implemented in cases of non-mixed couples. To a certain extent, mixed couples represented the maximum standard of protection in relation to which the rest of cases were classified. As example of the administrative case law on this question after the 1990 reform, see BVerwGE, Urteil vom 9. Dezember 1997 -1 C 20.97. In this, the Court dealt with the question of the protection due to an alien who had entered illegally the territory, on the grounds of its marriage to a German national. The stratification or gradual conferral of protection is in fact viewed as one of the achievements of the 1990 reform. Indeed, one of the main critiques to the 1965 Aliens Act was the lack of differentiation among the categories of aliens which made it thus impossible to take into consideration the specific particularities of each case. More in accordance with the systematic structure that characterises German law, the 1990 reform finally incorporated this principle (Differenzierungsprinzip), both in the conferral of permanence permits and in the protection against expulsions. For an analysis of the resulting new categories after the 1990 reform, see Meissner 1993. This has been also analysed in the Arab case decision (35 BVerfGE 407). Thus, as argued by Schickedanz 1973, Article 6.1 BL, due to its universal character, would confer on aliens a fundamental right to family protection. However, it is a fundamental right that does not prevail over the public interest in ordering and executing the deportation of the alien. See, for instance, on the implementation of this balancing test by the Federal Administrative Court in the sphere of family protection and, specifically, in relation to mixed couples: 35 BVerwGE 291, Urteil des Ersten Senats vom 16. Juni 1970 – I C 47.69 (VGH Mannheim), 42 BVerwGE 133, Urteil des Ersten Senats vom 3. Mai 1973 -I C 33.72 (OVG Berlin), 42 BVerwGE 141, Urteil des Ersten Senats vom 3. Mai 1973 -I C 20/70 (Mu¨nchen), and 42 BVerwGE 143, Urteil des Ersten Senats vom 3. Mai 1973 -I C 59.70 (OVG Mu¨nster). For a critique of the reasoning of the Court in the OVG Mu¨nster decision, see Brause 1974. Also, see 56 BVerwGE 246, Urteil des Ersten Senats vom 27. September 1978 – 1 C 79.76 (OVG Lu¨neburg), on the reinforcement of the proportionality test through the notion of serious reasons (schwerwiegende Gru¨nde), and 60 BVerwGE 126, Urteil des Ersten Senats vom 20. Mai 1980 – 1 C 55/75 (Bremen), on the neutralisation of national interests by private ones. From the perspective of the correspondence between the two jurisdictions, it is in fact interesting to compare the decision of 27 September 1978 of the Federal Administrative Court with other Federal Constitutional Court decisions, in which the Federal Constitutional Court does not go as far as the Federal Administrative Court in restricting the use of arguments of general prevention in relation to mixed couples. See, for instance, 51 BVerfGE 386, Beschluss des Ersten Senats vom 18. Juli 1979. See, for instance, BVerfGE, Beschluss vom 15. Juni 1993 -2 BvR 900/93, in which the Court recalled that although Article 6 BL does not confer an absolute protection against deportations, the administration is in any case obliged to examine the specific circumstances. In this case, concerning an alien married to a German national, the Courts considered that the administration had not respected this obligation.

147. See, for instance, BVerwGE, Beschluss vom 15. September 1994 -1 B 214. 93, in relation to the authorisation of permanence of the alien spouse of an alien resident, in which the Court, though, insisted on the only limited impact of Article 6 BL. 148. This may actually explain the prevalence of Article 6.1 in the case law – both constitutional and administrative – in the field of immigration. Moreover, this very fact might have created a judicial dynamic in which the sphere of family protection ended up being consolidated as the basis for any further development. 149. See the 1957 Elfes decision referred to above. 150. The majority of the scholarship showed concern for the possible consequences of that interpretation. See, in this sense, Bleckmann 1979, Franz 1974, Hailbronner 1983a, Schwabe 1974, and Tomuschat 1980. 151. See above, section II.1 on emergent rights. 152. This was indeed what motivated the stronger critiques to this decision. See, for instance, Schwabe 1974, who considered, contrary to what the Court seemed to assume in this decision, that the structure of fundamental rights, besides reflecting a material classification (relative to the content of the rights), it also indicates a personal one – i.e. indicative of the holders of these rights. See as well Zuleeg’s reaction to Schwabe’s reflections (Zuleeg 1975). 153. 78 BVerfGE 179, Beschluss des Ersten Senats vom 10. Mai 1988 -1 BvR 482/84 und 1166/85. 154. The question put before the Court was whether aliens could be excluded from a special permit required to exercise a non-medical curative technique (Heilpraktikum). The Court declared that the exclusion constituted a violation of the Constitution. Specifically, it violated Article 2.1, in combination with Article 20.3, on the rule of law, but not, however, Article 12.1, on the right to choose one’s profession. In the view of the Court, this last provision was not relevant there. In any case, the Court seized the occasion to affirm that, despite the express reserve established by Article 12.1 in favour of nationals, aliens are protected by the Constitution in that field, through the general clause of Article 2.1. 155. Nevertheless, no further specification of the precise impact of Article 2.1 is to be found in this decision either. In this sense, see, for instance, Bauer 1990, criticising the continued lack of definition by the Court of the criteria regarding this question. 156. For an evaluation of the Court’s reasoning in this decision, see, for instance, Felix and Jonas 1994. Fundamentally, these authors see in this decision an attempt by the Court to calm the concerns raised among the scholarship in the Arab case. Nevertheless, they do not interpret it as necessarily implying a rejection of the possibilities of conferring a general constitutional protection on aliens. In their opinion, the role of Article 2.1, in the interpretation of the Court, is to grant a minimum standard of protection to aliens, even in areas expressly reserved to nationals by the text of the Constitution. The recognition of protection on a universal basis would derive from the constitutional order itself and, specifically, from provisions such as Article 1 BL on the principle of human dignity. Indeed, although this 1988 decision focuses on Article 12.1, the analysis of these authors is actually based on the more general procedural problem of the so-called falsa demonstratio. That is, the question of the exercise, by aliens, of the constitutional complaint (Verfassungsbeschwerde) when the right on which the complaint is based is, in principle, reserved to nationals. This was the case in the 1988 decision. Thus, according to the view defended by these legal scholars, the criteria of admission of constitutional remedies should be flexible, in accordance with the existing minimum protection standard for aliens. 157. 49 BVerfGE 168, Beschluss des Ersten Senats vom 26. September 1978 -1 BvR 525/77. 158. 49 BVerfGE 187-188.

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159. The state administrative court had in fact upheld the administrative denial on the basis of 1966 guidelines that recommended restrictions of non-Europeans working in Germany. 160. The Federal Administrative Court has adopted the Federal Constitutional Court’s definition of the notion of Vertrauensschutz in the field of immigration. Illustrative of this are decisions such as BVerwGE, Urteil vom 10. November 1978 -1 B 246.77 (VGH Kassel), in which this notion was used, though, in order, precisely, to justify the denial of the renewal of the permit. The Court affirmed on that occasion that no reliance could be held to have been generated by the behaviour of the administration. See, also in this sense, BVerwGE (Vorpru¨fungsausschuss), Beschluss vom 27. November 1984 2 BvR 1127, 1130/84. Also interesting is the use of this notion in a later decision of the same jurisdiction (BVerwGE, Beschluss vom 18. Juni 1992 -1 B 78. 92), in which the Court was confronted with the question of the specific protection conferred by Article 6 BL, against a deportation order, in the case of a marriage celebrated after the perpretation of criminal offences. As stated by the Court, although the protection of Article 6 exists also in those cases, the impact of the principle of reliance is diminished by the fact of having known, before the celebration of the marriage, that offences had been committed and, therefore, that a consequent risk of expulsion existed. 161. See, for an analysis of the impact of this decision, Weber 1979. 162. See above, in section II.2 on emergent rights. 163. Some examples of this restrictive trend of the administrative courts may be found in less important decisions such as BVerwGE, Beschluss vom 11. Februar 1983 -1 B 19/83 (Mannheim), on the reunification of parents with their minor children, and BVerwGE, Beschluss vom 1. November 1985 – 1 B 128/85 (Mannheim), on the reunification of the partners of second generation immigrants. A 1984 decision of the Federal Administrative Court, in which the Court confirmed the very restrictive regulation on family reunification enacted by the Land of Baden-Wu¨rttemberg (70 BVerwGE 127, Urteil vom 18. September 1984 -1 A 4/83) is particularly significant in this regard. Instead of the general one-year waiting period after the celebration of the marriage, as indicated by the 1981 general policy guidelines of the Federal Government, Baden-Wu¨rttemberg required a waiting period of three years for the concession of reunification. The Court, in this decision, affirmed the general legitimacy of the regulation, as well as its more specific conformity with principles such as Bundestreu, which, in constitutional case law designates the different obligations that define the cooperation between the La¨nder and the Federal State. According to the Court, the Government’s guidelines were merely indicative. Moreover, in relation to the material question at stake, the Court argued that immigration policy objectives such as the fight against sham marriages or, simply, the dissuasion of new arrivals, justified this new requirement. Although the Court admitted that a shorter period of time could have equally achieved these objectives, it also held that the adoption of such mechanisms relied on prognosis analyses, which unavoidably incorporate a certain degree of incertitude. For a critique of this decision, see Pirson 1985. Fundamentally, Pirson reproached the Court for having accepted the mechanism of the waiting period, discarding alternative and less afflictive possibilities for the alien, such as the balancing of interests by the administration. Likewise, for an overview of the jurisprudential contribution during those years, as well as on the different categories and modalities of family reunification resulting therefrom, see Hailbronner 1983b. 164. 76 BVerfGE 1, Beschluss des Zweiten Senats vom 12. Mai 1987, -2 BvR 1226/83, 101, 313/84. 165. See above, note 163.

166. For a critique of the Court’s reasoning, see Huber 1988. According to Huber, the Court should have based its reasoning not so much on the proportionality principle as in the fact that the waiting period meant subordinating a fundamental right (the one declared by Article 6 BL) to an immigration policy aim. As Huber sustained, the Court had not been consistent in this decision with the universal character conferred to Article 6 in its previous case law. Also in this sense, see Zuleeg 1988. On the opposite stand, see Weides and Zimmermann 1988, precisely denying the actual existence of a fundamental right to family reunification. In their view, Article 6 does confer some kind of protection (fundamentally, obligations for the state), but in no way a subjective right of entrance on aliens. See also in this sense Meyer-Teschendorf 1989, who argues that Article 6 cannot be characterised as a fundamental right in the case of aliens who are still outside Germany. A physical contact with the territory is required in order to claim protection from the state. Moreover, in the view of this author, Article 6 consists only of a liberal or negative dimension, which can therefore only oblige the state to abstain from interfering in the enjoyment of the right, and cannot thus mandate positive action, such as family reunification. For a more general evaluation of the case law of the courts (before the 1987 decision of the Federal Constitutional Court), and focused on the definition of the nature and content of Article 6, see Quaritsch 1984 and Franz 1984, each of whom represent opposite positions. Whereas Quaritsch denies the existence of a right to family reunification on the grounds of Article 6, and thus legitimises the restrictive administrative trend in relation to the entry of alien minors, Franz, instead, criticises the fact that courts had not used the text and the potentiality of Article 6 in order to consecrate a real fundamental right. 167. Basically, the Court justified this by saying that Article 2.1 BL does not confer a right of entry and permanence on aliens. This was in effect later confirmed in its decision of 10 May 1988, analysed above. 168. See above, on section II of emergent rights. 169. See Neuman 1990, for a comparison between the German Federal Constitutional Court and the American Supreme Court in the field of immigration. In relation to the question of family reunification (pp. 57-63), Neuman argues that, in contrast with the German Federal Constitutional Court, the American Supreme Court never goes as far in its reasoning as to contemplate aliens who have never had any contact with the territory. 170. From this perspective, it is interesting to note the fiction that the Court created in order to circumvent the requirement of physical contact with the German territory, which was traditionally considered as the precondition for obtaining constitutional protection. See, on this point, Isensee 1974. The Court considered that the contact with the territory existed to the extent that aliens had been admitted in order to visit their relatives. However, the Court also considered that, once that visa had expired, the aliens recovered the legal status enjoyed before the obtaining of that visa, i.e. the same status as the one enjoyed by aliens who had never entered the territory. It is indeed the existence of a relationship with persons already inside the German territory that, in the view of the Court, ultimately paved the way for the implementation of Article 6 in the case of aliens still outside the territory (76 BVerfGE 46). 171. According to the Court (76 BVerfGE 70), the state owes a particular duty to firstgeneration immigrants, with whom the administration has directly committed itself. Although this does not confer on them a real right to family reunification either, the state has acquired responsibility towards them, because of the fact of having recruited and received them, this making the requirement of a three-year waiting period as especially afflictive. For a critique of this difference of treatment before first and second-generation of aliens, which the 1990 Aliens Act directly incorporated in its text (Article 18.1.1 and 3), see Lange 1998.

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172. In relation to the other requirement introduced by the administration in order to obtain the family reunification, i.e. the previous and continued residence of eight years, the Court declared instead that the principle of proportionality had been respected. As the Federal Administrative Court had reasoned in its decision referred to above of 18 September 1984 (see note 163), the requirement of eight years was considered proportionate with regard to the aim of assuring a full integration of the aliens before they are joined by the rest of their relatives (76 BVerfGE 52-54). 173. 76 BVerfGE 70. 174. Indeed, the case law of those years offers interesting cases. See, for instance, 71 BVerwGE 228, Urteil vom 30. April 1985 -1 C 33.81 (OVG Mu¨nster), on the reunification of the second spouse of an alien resident. The Federal Administrative Court gave priority to the criterion of the material dependence between the family members, over the maintenance of public order (which was usually employed as a reason to deny permits in cases of polygamy), and thus authorised the entry. The ultimate motivation of the Court for the conferral of protection remained however ambiguous. Essentially, the Court seemed to concede the protection on the grounds of the existence of two minor children who resided already in Germany, considering them in need of their mother’s care. In this sense, the solution might have been different had there not been dependent children. See, on this point, Kimminich 1985, who considers that the question of whether polygamous marriages are covered by Article 6 remained open after this decision. 175. 80 BVerfGE 81, Beschluss des Zweiten Senats vom 18. April 1989 – 2 BvR 1169/84. 176. For instance, in that case, the Court classified the family concerned as a mere Begegnungsgemeinschaft, since all the members of the family were adults and autonomous and, therefore, no relationship of dependence existed between them. The Court adopted the same reasoning in a case of a relationship between a divorced father and his child (BVerfGE, Beschluss des Zweiten Senats (2. Kammer) vom 10. August 1989 -2 BvR 67/85). According to the Court, the Lebensgemeinschaft necessary to obtain the protection of Article 6 did not exist in this case since the father was no longer in charge of the child. For a more precise definition of the idea of life community, see BVerfGE, Vorpru¨fungsausschuss, Beschluss vom 18. Januar 1984 – 2 BvR 1979/83, in which the Court declared the obligation to leave the territory once it was clear that the celebration of the marriage (for which the entrance of the alien had been authorised) would not take place. Also in this sense, see BVerwGE, Beschluss vom 17. November 1994 -1 B 224.94 (1 VR 8.94), in which the Court sustained that the order of expulsion is not affected by the existence of an engagement when no date has been settled for the celebration of the marriage. Indeed, the case law following the 1990 law reform has continued to expand and further define the notion of Lebensgemeinschaft. See, for instance, BVerfGE, Beschluss vom 1. Oktober 1992 2BvR 1365/92, in which the Court held that Article 6 also covers the relationship of an unmarried father with his child, as long as there exists a real life together. 177. BVerfGE (3. Kammer des Zweiten Senats), Beschluss vom 12. Dezember 1989 -2 BvR 377/88. The implementation of this criterion led the Court in this decision to confer protection despite the age of the person adopted (i.e. no longer a minor), on the grounds of the material dependence that existed between the family members. This decision represented a rupture with the administrative case law. See, for instance, BVerwGE, Urteil vom 26. Ma¨rz 1982 -1C 29/81 (Mannheim), BVerwGE, Beschluss vom 4. Oktober 1982 -1 B 93.82 (VGH Baden-Wu¨rttemberg) and 69 BVerwGE 359, Urteil vom 10. Juli 1984 -1 C 52/81 (Mu¨nster). From a more general perspective, see, however, an early decision of the Federal Administrative Court (42 BVerwGE 148, Urteil vom 3. Mai 1973 -I C 35.72 (OVG Mu¨nster)), granting the entrance of a grandmother in order to join her family resident in Germany, and thus help them to take care of her

178. 179.

180.

181.

182. 183. 184. 185.

186.

187. 188.

grandchildren. The Court insisted here on the non-existence of a right to entry, but authorised nevertheless the entry on the grounds of the social obligations of the state (Sozialstaatsprinzip). However, the Court did not develop further this idea in its later decisions (see, for instance, the decision published in Neue Juristische Wochenschrift 1983, 532). BVerwGE, Urteil vom 9. Dezember 1997 -1 C 16.96. See, for instance, 76 BVerfGE 47, where the Court explicitly referred to asylum as the only real right to entry foreseen by the Constitution in the case of aliens. As the Court argued, a more general definition of such a right would directly contradict Article 11 BL. For a construction, through case law and literature, of an aliens’ freedom of movement, see Ziekow 1997. More generally, on the status of aliens, see Quaritsch 1992. See, among others, Geissler 1996. Notwithstanding, other areas reveal progressively also determinant for the construction of aliens’ status. The freedom of religion may be an example of this. In the early case law of the courts this freedom had been affirmed as a fundamental right of aliens, which could not however alter the fundamental premises on which immigration law is based (BVerwGE, Beschluss vom 6. Mai 1983 1 B 58/83 (Mannheim)). In a recent decision, though, the Federal Administrative Court has admitted the possible impact of this freedom on the granting of entry permits (BVerwGE, Urteil vom 10. Juli 2001 -1 C 35.00). See above, in precarious rights, note 38. BVerwGE, Urteil vom 16. Juli 2002 -1 C 8. 02. See on this, Fligge 1996. See, also, as a precedent of the Mehmet decision, BVerwGE, Urteil vom 27. August 1996 -1 C 8. 94. The response given by German law in this respect appeared in effect restrictive with regard to the standards set by the ECtHR. See, in this sense, Huber 2001 and Sieveking 2001. On this question, see also Marx 2000. Also critical towards the alleged protection of certain categories of aliens in the 1990 Aliens Act, see Wegner 1992. De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France). This decision represents a most polemic intervention, in which the Conseil struck down eight of the bill’s fifty-one Articles, because in its view those Articles deprived foreigners of basic rights guaranteed by the French Constitution. This bill on the entry, reception and stay of foreigners in France was introduced by Charles Pasqua, the conservative party (RPR) Interior Minister, and was part of a whole set of reforms planned to attain the declared aim of zero immigration. The polemic surrounding the adoption of stricter immigration and asylum policies escalated with the Conseil’s censure of the law. See paragraph 2 of the decision. This decision represents the definition, for the first time, of an aliens’ constitutional status. The introduction of the restrictive Pasqua bill on immigration led the Conseil Constitutionnel to engage in a vast analysis of different issues concerning aliens. Although the basis for a constitutional status had been already declared in its previous decisions, it is on this occasion that the Conseil structured aliens’ rights from a more general perspective. The fundamental principles were introduced at the beginning of the decision (paragraphs 2-7), and two main ideas were indicated throughout the Conseil’s reasoning: the principle that aliens are not necessarily placed in the same situation as nationals, and the necessity of distinguishing between regular and irregular residents for the conferral of certain rights.

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189. Some scholars have interpreted this general statement as a radicalisation of the Conseil’s position with respect to its previous case law. See for instance Pre´tot and Dupeyroux 1994, who affirm that the Conseil, by excluding any possibility of constitutional ground for the entry and permanence of aliens, effectively rejected its view held in decisions such as the decision 86-216 of 3 September 1986. In the opinion of these authors, the Conseil, in this 1986 decision, contemplated Article 4 of the 1789 De´claration des droits de l’Homme et du Citoyen, on freedom, as a possible ground for the recognition of an aliens’ right to permanence, and maybe even to entry (‘‘La liberte´ consiste a` pouvoir faire tout ce qui ne nuit pas a` autrui: ainsi l’exercice des droits naturels de chaque homme n’a de bornes que celles qui assurent aux autres Membres de la Socie´te´ la jouissance de ces meˆmes droits. Ces bornes ne peuvent eˆtre fixe´es que par la Loi.’’). 190. Likewise, the formula adopted by the Conseil on this occasion has been maintained in its later interventions. See for instance De´cision n 2003-484 DC du 20 novembre 2003 (loi relative a` la maıˆtrise de l’immigration, au se´jour des e´trangers en France et a` la nationalite´), in which the Conseil admitted as legitimate the latest restriction by the legislator of the conditions of entry and permanence, by referring expressly to the 1993 decision and by, thus, arguing that aliens do not have an absolute or general right to residence (paragraph 28). 191. De´cision n 89-266 DC du 9 janvier 1990 (loi modifiant l’Ordonnance n 45-2658 du 2 novembre 1945 relative aux conditions d’entre´e et de se´jour des e´trangers en France). 192. See, for instance, Mathieu and Verpeaux 1995, interpreting the interventions of the Conseil as ultimately trying to achieve a balance between the alleged right of the state to defend its borders and the rights of aliens residing in the territory. 193. See, for instance, De´cision n 79-109 DC du 9 janvier 1980 (loi relative a` la pre´vention de l’immigration clandestine et portant modification de l’Ordonnance n 45-2658 du 2 novembre 1945) and De´cision n 86-216 DC du 3 septembre 1986 (loi relative aux conditions d’entre´e et de se´jour des e´trangers en France), which represent the first interventions of the Conseil in the sphere of immigration. See Hamon 1980, interpreting the 1980 decision as a confirmation of the discretionary state powers vis-a`-vis aliens. 194. De´cision n 89-269 DC du 22 janvier 1990 (loi portant diverses dispositions relatives a` la se´curite´ sociale et a` la sante´). 195. De´cision n 89-261 DC du 28 juillet 1989 (loi relative aux conditions de se´jour et d’entre´e des e´trangers en France), paragraph 12. 196. De´cision n 89-261 DC du 28 juillet 1989 (loi relative aux conditions de se´jour et d’entre´e des e´trangers en France). In this decision, however, the Conseil’s reluctance to restrict the field of discretionary powers of the legislator benefited ultimately the rights of the aliens. The referral presented by members of the French conservative opposition party, claiming more strict requirements for the concession of the residence permits, was rejected by the Conseil. See Osman 1990 and Pre´tot 1990. 197. The so-called ‘‘re´serves d’interpre´tation’’ or ‘‘directives d’interpre´tation’’ represent a method of legal interpretation developed by the constitutional case law, through which the Conseil has proceeded to a much more thorough analysis of the law. The decision of 1993 is paradigmatic in this respect. Through this technique, the Conseil declares the possible unconstitutionality of a text, indicating however the ways to prevent this, i.e. the criteria that can allow for a constitutional interpretation of the law. The Conseil thus avoids the declaration of unconstitutionality and at the same time assures the conformity of the text with the Constitution. Against this method, though, it is argued that the Conseil interferes with the legislator by employing this technique and that it thus oversteps the limits of its own competence, which in France is regarded with particular concern. Through this approach, the Conseil not only acts as

198.

199.

200.

201.

202.

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a negative legislator but also declares what the law should actually say. On the other hand, however, it is a technique that allows the Court a much more cautious approach, since it exempts it from a direct confrontation with the legislator. For instance, in the 1993 decision, the Conseil thus avoided numerous declarations of unconstitutionality, by merely indicating, instead, the criteria that would make a correct interpretation of the Act possible. This technique has been criticised in academic writing by arguing that it leads to legal uncertainty. See Guimezanes 1994. However, besides its jurisdictional functions, the Conseil d’E´tat also possesses administrative attributions. Its main function in the administrative field is the release of non-binding opinions or reports (avis) on the questions or proposals of legislation presented by the government. Article 61 of the 1958 Constitution provides: ‘‘Les lois organiques, avant leur promulgation, et les re`glements des assemble´es parlementaires, avant leur mise en application, doivent eˆtre soumis au Conseil Constitutionnel qui se prononce sur leur conformite´ a` la Constitution. Aux meˆmes fins, les lois peuvent eˆtre de´fe´re´es au Conseil Constitutionnel, avant leur promulgation, par le Pre´sident de la Re´publique, le Premier Ministre, le Pre´sident de l’Assemble´e Nationale, le Pre´sident du Se´nat ou soixante de´pute´s ou soixante se´nateurs. Dans les cas pre´vus aux deux aline´as pre´ce´dents, le Conseil Constitutionnel doit statuer dans le de´lai d’un mois. Toutefois, a` la demande du Gouvernement, s’il y a urgence, ce de´lai est ramene´ a` huit jours. Dans ces meˆmes cas, la saisine du Conseil Constitutionnel suspend le de´lai de promulgation.’’ However, besides the possibilities of direct intervention in the cases of reform of the 1945 Ordonnance, the Conseil has also been able to adjust and specify its criteria concerning aliens on other occasions, in relation to different issues. The following decisions offer some examples of this: the decision 89-269 of 22 January 1990 on social benefits, the decision 96-377 of 16 July 1996 on terrorism, or the decision 92-308 of 9 April 1992 on the conformity of the EU Treaty with the French Constitution. Very often, the material criteria are anticipated by the Conseil d’E´tat (or, even, by the Cour de Cassation, the highest jurisdictional court in all non administrative matters, which has however a very reduced competence in the sphere of immigration), and are only later confirmed, formally, by the Conseil Constitutionnel, which thus recognises their constitutional status. See Vedel 1992. On other occasions, though, it is the Conseil Constitutionnel which first introduces constitutional principles in relation to aliens. In those cases, the question then at issue is whether the Conseil d’E´tat and the Cour de Cassation will follow its indications. See later, in chapter 6, for a more in depth analysis of the relationship and distribution of competence between these courts in the progressive construction of aliens law. For an analysis of the origins of the administrative jurisdiction and the principle of division in France, see, among others, Lochak 1998, Chapus 2000, Chapus 2002. Napoleon’s decision to create a new realm of legal norms – public law, separated from the traditional private law – sought ultimately to construct an efficient administration, which represented the state instrument to change the feudal society into a liberal one. According to Napoleon’s conception, this could only be possible if the administration was not under the jurisdiction of the traditional and conservative judges. The question had been in fact already analysed by the Conseil in its previous decisions concerning immigration issues. See for instance De´cision n 79-109 DC du 9 janvier 1980 (loi relative a` la pre´vention de l’immigration clandestine et portant modification de l’Ordonnance n 45-2658 du 2 novembre 1945) and De´cision n 86-216 DC du 3 septembre 1986 (loi relative aux conditions d’entre´e et de se´jour des e´trangers en France). In the sphere of aliens’ police, the reconduite a` la frontie`re represents an administrative procedure that allows the prefect, in a limited series of cases, to

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expel aliens who are in a situation of administrative irregularity. The question that had actually motivated the reform of the law was the long awaited introduction of the suspensive effect in the judicial review concerning these measures. With the reform, though, the competence over this specific domain was conferred on the juge judiciaire. Different reasons were advanced to justify this choice: the competence of the juge judiciaire, as declared by the French Constitution, to control the respect of personal liberty (Article 66 of the Constitution), or even the possibility of having to resolve questions related to criminal and civil law, which thus fall beyond the material competence of the juge administratif. 205. The laws promulgated during the first three Republics, relating to rights and liberties. The principes fondamentaux reconnus par les lois de la Re´publique constitute constitutional principles (principes de valeur Constitutionnelle) that, although not explicitly proclaimed by the constitutional texts, are nevertheless defined by the constitutional case law as binding the legislator. The majority of these principles derive from constitutional texts, being however consolidated through a type of praetorian constitutional case law. Since the fundamental constitutional decision of 16 July 1971, they are part of the so-called bloc de constitutionnalite´, which represents the group of texts having supralegislative value and, therefore, according to which the Conseil Constitutionnel evaluates the action of the legislator. This bloc consists of the 1958 Constitution, including its Preamble, the principes a` valeur Constitutionnel (i.e. the Declaration of the Rights of Man, the Preamble to the 1946 Constitution, and the principes fondamentaux reconnus par les lois de la Re´publique), as well as, to a certain extent, fundamental acts of parliament (lois organiques) and international treaties. 206. According to the Conseil Constitutionnel, besides the specific questions which, ratio materiae, are reserved to the juge judiciaire, the juge administratif is competent for the derogation or reform of the decisions adopted, in the exercise of public prerogatives, by authorities belonging to the executive power (paragraph 19). In this way, the Conseil confirmed its decision 86-244 of 23 January 1987, Conseil de la Concurrence, concerning competition law, in which the Conseil set the criteria of distribution of competence between the two judicial orders. On that occasion, the Conseil reasoned its position on the basis of the French constitutional category of the Principes fondamentaux reconnus par les lois de la Re´publique, instead of proceeding to this distribution according to other possible grounds such as Article 16 of the De´claration des Droits de l’Homme et du Citoyen, that consecrates the principle of division of powers (‘‘Toute societe´ dans laquelle la garantie des droits n’est pas assure´e, ni la se´paration des pouvoirs de´termine´e, n’a point de Constitution.’’); see Genevois 1989. As in 1987, the Conseil added in its 1989 decision that the implementation of the specific relevant legal norms could raise questions which, according to the normal criteria of distribution of competence, might correspond to different jurisdictions. On behalf of the proper administration of justice, the Conseil thus declared legitimate the unification by the legislator of all these questions under the competence of a single judge (paragraph 20). However, when analysing the reasons argued by the legislator in that case in order to attribute the competence to the juge judiciaire, the Conseil rejected all of them. Furthermore, the Conseil stated that even if the aim of the proper administration of justice could justify a unification of competence, this could never go as far as to imply the violation of a principle of constitutional value such as the one consecrating the area of competence of the juge administratif (paragraph 29). 207. Although the Conseil in effect proceeds to a more general definition of the main principles characterising the field of immigration, it does not realise a thorough justification of the fundamental premise either: the denial of a right of entry and permanence to aliens. It simply declares this as a main premise inherent in the state’s sovereignty, and from which it is necessary to depart in the construction of aliens’ legal status. According to Bruno Genevois, from a comparative perspective, this

208. 209. 210. 211. 212. 213.

214. 215. 216.

217.

218.

219.

220. 221.

reasoning would contrast with the cases of other national constitutional courts. This author refers in its analysis to a decision of the Italian Constitutional Court (decision 104 of 26 June 1969), in which the Court proceeded to a justification of the difference of treatment foreseen in the law between nationals and aliens by arguing that a different type of relationship existed between the state and the person, this being only temporary in the case of aliens, and permanent in the case of nationals (Genevois 1998, p. 256). See, for instance, CE, arreˆt 2 aouˆt 1936, Naundorff. CE, arreˆt 21 novembre 1952, Marcon. CE, arreˆt 22 avril 1955, Association franco-russe dite Rousky-Dom. CE, arreˆt 16 fe´vrier 1955, Dame Bourokba; CE, arreˆt 3 fe´vrier 1956, Keddar. CE, arreˆt 28 fe´vrier 1986, M. Ngako Jeuga. According to Bernard Pacteau, the Court, in this decision, by admitting the use by the administration of the wider term of general interests in relation to the conferral of entry visas, proceeded to an indirect delimitation of this notion with respect to the concept of public order. In contrast to the notion of general interest which designates the general aim of the administration, the term public order expresses the more restricted objective of the administrative sphere of aliens’ administrative police (police spe´ciale des e´trangers; see later, in section III of precarious rights, for a definition of this concept). In this way, the Conseil d’E´tat ultimately denied that the administrative acts of denial of visas belong to the sphere of administrative police. Consequently, the administration is not affected in this sphere by its otherwise general obligation – imposed by the Act of 11 of July 1979 – to justify the acts of administrative police that imply a restriction of rights. See Pacteau 1986. CE, 17 juin 1996, M. et Mme. Haddou. CE, 22 avril 1992, Alkan. On this general debate, see, among others, Genevois 1989, Chevallier 1989, Osman 1990, and Pre´tot 1990. See also Pre´tot 1997, in relation to the debate raised by the decision of the Tribunal des Conflits of 12 May 1997 (TC, 12 mai 1997, Pre´fet de police c/ Ben Salem et Taznaret). In this controversial decision, the Tribunal des Conflits confirmed the competence of the administrative court, thereby making it impossible to allow for the conferral of interim relief. The Tribunal des Conflits is the highest jurisdiction after the Conseil Constitutionnel and, therefore, this jurisdiction is hierarchically above the two judicial authorities (ordre judiciaire et ordre administratif), its task being the resolution of the competence conflicts that may emerge between the two orders. Article 66 of the French Constitution: ‘‘Nul ne peut eˆtre arbitrairement de´tenu. L’autorite´ judiciaire, gardienne de la liberte´ individuelle, assure le respect de ce principe dans les conditions pre´vues par la loi.’’ Article 2 of the Declaration of 1789: ‘‘Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’Homme. Ces droits sont la liberte´, la propriete´, la suˆrete´ et la re´sistance a` l’oppression.’’ The expression ‘‘liberte´ d’aller et venir’’ was originally used to refer to the right to personal freedom. In the modern terminology, though, it essentially designates one of the components of this right. De´cision n 89-261 DC du 28 juillet 1989 (loi relative aux conditions de se´jour et d’entre´e des e´trangers en France). Underlying this debate is the question of the means of intervention recognised to each of these jurisdictions. Until the respective reforms of 1995 and 2000 – which introduced the possibility for the administrative judge to impose on the

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administration the realisation of a positive action, only the juge judiciaire had the power, in the face of the administration, to put an end to arbitrary detentions. From this point of view, see the analysis by Bruno Genevois of the decision 89-261(Genevois 1989), arguing that the means of intervention of the juge administratif should then be improved in order to assure a correct protection of fundamental rights. See in this sense the analysis by Jean-Bernard Auby of the constitutional decision 79-109 of 9 January 1980, interpreting this decision as a restriction of the criteria set in 1977 (Auby 1980, p. 251). According to this author, although the decision of 12 January 1977 defined a broad notion of the right to individual freedom which implicitly included aliens among its holders, and which resulted in the consecration of the juge judiciaire’s competence, the Conseil, in its 1980 decision on immigration, gave priority to the intervention of the administrative jurisdiction and admitted a much wider imposition of detention measures. By allowing the first imposition of detention measures by the administration, and thereby making the juge administratif competent for the control of such measures, the criteria set in 1977 would thus have been modified. See also in this sense the analysis by Le´o Hamon of this 1980 decision (Hamon 1980, p. 534). De´cision n 86-216 DC du 3 septembre 1986 (loi relative aux conditions d’entre´e et de se´jour des e´trangers en France). See CE, arreˆt 8 mars 1940, Kaboloeff, or CE, arreˆt 24 octobre 1952, Eckert, which represent an evolution with respect to the principles set by the Conseil d’E´tat in its case law of the previous century (CE, arreˆt 24 janvier 1867, Radziwil, or CE, arreˆt 14 mars 1884, Morphy). The action of the administration is indeed strictly subordinated to the respect of the law through the principle of legality (principe de le´galite´), the courts being competent for its control. Following the scheme defined by Rene´ Chapus (Chapus 2000), it is possible to distinguish between an external and an internal control of legality. The external control examines the way in which the act has been adopted: the competence of the authority that has enacted the decision, the procedure followed for its approval, and its form. The internal control refers instead to what has actually been decided: the content of the act, the finality pursued by it (de´tournement de pouvoir), and the reasons that have motivated its adoption. This latter is however of greater complexity, since it allows for different possibilities. These are, the control of the interpretation of the law (erreur de droit), of the qualification of the facts – so that they can actually justify the imposition of the measure (erreur dans la qualification juridique des faits), and of the reality of the facts on which the imposition of the measure is based (erreur de fait). In turn, with regard to the reach of this control, it becomes necessary to analyse what sort of prerogative the administration has. If this is a discretionary prerogative, the administration has an unrestricted choice between two or more possibilities, all of them being equally legal and the option between them thus being a judgment regarding its ‘‘appropriateness’’ (opportunite´). If the prerogative is instead ‘‘bound or regulated’’ (lie´e), the administration has no possibility of choice: it must proceed to the approval of the decision once certain facts have been verified. In this sense, there actually exists no possibility of control since the decision has simply to be adopted or not. Likewise, the reach of the control can also be of different intensity (restreint or normal). In cases of discretionary prerogatives, the control exercised is limited, since it is not open to the courts to interfere in the administrative evaluation. In fact, until the 1960s, the administrative jurisdiction refused in those cases to control in any way the legal qualification of the facts. Only then, through the technique of the erreur manifeste d’appre´ciation, the courts accepted to exercise some control: the manifest error of judgment in the legal qualification of the facts relevant to that decision. The later evolution of the administrative case law has led, however, to an expansion of these techniques also in the sphere of discretionary powers, the exercise

226. 227.

228.

229.

230.

231.

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of a full control being thus now sometimes possible (see further on concerning emergent rights). CE, Sect., arreˆt 16 mars 1984, Ministre de l’Inte´rieur c/ Djaballah. According to Bernard Pacteau, the Court missed here the opportunity to extend the reach of the technique of erreur manifeste d’appre´ciation. In his view, this would have been possible by incorporating the new terminology of the 1981 law reform, which introduced the requirement of a ‘‘serious’’ threat to public order (menace grave, instead of a simple threat), and thus increased its traditional level of control. It should however be noticed that the derogation of expulsions represented a sphere of especially large discretionary prerogatives. The reform (the first socialist innovation in the field of immigration) also introduced a list of categories of aliens protected against deportations. The Conseil however considered that this could not apply to deportations ordered before the approval of the reform. Nevertheless, as also pointed out by this scholar, the Conseil did admit the possible implementation of the new ways of derogation of deportations to orders enacted before the reform (Pacteau 1987). The term ‘‘administrative police’’ designates one of the areas of activity of the administration which is the preservation of public order. In opposition to the general administrative police, there are special administrative police such as the one that deals with aliens and immigration related issues. In the case of the ‘‘aliens special administrative police’’, it differentiates from the general administrative police in the type of authorities and procedures provided for. Thus, aliens are subject to specific administrative and police rules such as the ones establishing identity checks and that require from aliens the possession of documents to make this identification possible. These powers granted to the police authorities are subject to the ordinary guarantees of control by the administrative courts. There are in fact other cases in French law where the same facts may give rise to the imposition of both administrative and criminal measures. It is indeed possible to impose administrative sanctions on the basis of facts constitutive of criminal offences, as it is the case for a significant part of the administrative sanctions such as, for instance, confiscation of a driving licence. Likewise, aliens and nationals are subject to the same criminal regime when the detention is part of a criminal procedure. The detention has to be then ordered by a judicial authority, instead of by an administrative one as in the case of administrative measures. Further, in the case of aliens, freedom of movement may also be restricted by measures of administrative police in cases of danger to public order. However, measures related to refusals to remain in France, with the important consequences that they involve, can only apply in the case of non-nationals. The qualification of its nature becomes then relevant. In this case, the Conseil was confronted for the first time with the reform of the 1945 Ordonnance. In the autumn of 1979, the government, arguing the need to fight irregular immigration, managed to get a bill through parliament prepared by the Minister of the Interior, M. Bonnet, which restricted the conditions of entry and permanence of aliens. See paragraph 6. In the referral it was argued that the law authorised the pronunciation of expulsions on the basis of facts constitutive of criminal offences, which would lead the administrative authority to intervene replacing the judicial authority. As argued by Louis Favoreu, in the decision 79-109, the Conseil Constitutionnel might have gone as far as to constitutionalise the possibility for the legislator to entitle the executive to adopt police measures concerning aliens even in cases in which the facts at stake represent criminal offences (Favoreu 1980, p. 1636). See also Auby 1980, critical of this legitimisation by the Conseil of the intertwining of administrative and criminal reasons. According to this scholar, this contradicts the administrative case

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235. 236.

237.

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239. 240. 241.

242. 243.

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law, which had expressly refused the connection between these different types of reasoning. See, for instance, CE, Ass., arreˆt 21 janvier 1977, Ministre de l’Inte´rieur c/ Dridi, analysed below. Article 8 of the 1789 De´claration des Droits de l’Homme et du Citoyen: ‘‘La Loi ne doit e´tablir que des peines strictement et e´videmment ne´cessaires, et nul ne peut eˆtre puni qu’en vertu d’une Loi e´tablie et promulgue´e ante´rieurement au de´lit, et le´galement applique´e.’’ According to the administrative case law, these prerogatives are by nature nontransferable, since they relate to the state’s monopoly of force, and cannot therefore be delegated or conceded to private individuals of any sort (CE, arreˆt 20 juin 1932, Ville de Castelnaudary). See Lochak 1992, p. 690. Also critical, see Julien-Laferrie`re 1992a. De´cision n 92-307 DC du 25 fe´vrier 1992 (loi portant modification a` l’Ordonnance n 45-2658 du 2 novembre 1945 modifie´e). In its decision of 25 July 1991 (on the law authorising the ratification of the Schengen Implementation Agreement), the Conseil had already accepted, without criticising it, Article 26 of the Implementation agreement. This provision introduced a system of sanctions regarding carriers. On this later occasion of 1992, the question at stake was the adaptation of the French legislation to these new requirements. See Lochak 1992, pp. 690-691. Thus, in the opinion of this author, the 1992 reform contradicts the principe de le´galite´ des de´lits et des peines, as well as the principe des droits de la de´fense. The reconduite a` la frontie`re is regulated in Article 22 of the Ordonnance of 1945 and foresees the possibility of removing from the national territory aliens who are in a situation of administrative irregularity. The expulsion is instead implemented in cases in which the presence of the aliens represents a threat to public order (see Article 23 of the Ordonnance of 1945). CE, arreˆt 20 janvier 1988, Elfenzi. CE, Ass., arreˆt 21 janvier 1977, Ministre de l’Inte´rieur c/Dridi. Since the reform of 1997, the 1945 Ordonnance subordinates again, in its Article 23, the imposition of expulsions to the existence of a ‘‘serious’’ threat to public order. The Pasqua law of 1986 had suppressed this additional requirement. CE, Ass., arreˆt 13 mai 1977, Perregaux. See the analysis of the Dridi decision by Franc¸ois Julien-Laferrie`re, arguing that the margins of the administrative discretionary power is to a large extent due to the intervention of the administrative jurisdiction, and not so much to their delimitation in the law (Julien-Laferrie`re 1977, p. 529 and ff.). In this sense, the courts’ reluctance to exercise a control is what in reality confers on the administration such powers. According to this scholar, the Conseil d’E´tat, on this occasion, beyond abstaining from censuring the reasons argued by the administration in order to justify the expulsion, went so far as to replace these arguments with its own reasons, thus legitimising an order of deportation that could have been otherwise invalidated. See, however, also on this decision, Nauwelaers and Fabius 1977a, arguing that the imposition of the deportation order does not represent a discretionary power, the conditions for its imposition being foreseen in the law. Actually, in the case of Perregaux, the deportation had been ordered by the administration as a consequence of the violation of the obligation concerning aliens of political neutrality. It should be noted, however, that this obligation no longer exists. See the analysis of the Perregaux decision by Nauwelaers and Fabius, who interpret the final solution as the Court’s unwillingness to set limits to the discretionary prerogatives of the administration. According to these authors, this solution offered

246.

247. 248.

249.

250. 251.

252. 253.

254.

by the Conseil in the sphere of immigration differs from its usual rejection of stereotyped argumentation (Nauwelaers and Fabius 1977b). See also Legrand 1979, insisting on the importance of other legal guarantees, as additional to the control of the erreur manifeste d’appre´ciation, such as the requirement of a previous notification of the deportation order, the possibility of hearings before the expulsions commission, or even the obligation of concise motivation of the order. Less critical, see also Moderne 1978. See, for instance, CE, Ass., arreˆt 8 de´cembre 1978, El Kaamouchi, in which the Court also refused to define further the general clause ‘‘threat to public order’’. On this occasion, the Court denied the existence of an erreur manifeste d’appre´ciation in the imposition of an expulsion order on the grounds of the possession of false documents. See as well CE, arreˆt 23 de´cembre de 1987, Tahraoui, in relation to theft and violence crimes of growing importance. CE, arreˆt 25 juillet 1980, Touami. See the analysis by Bernard Pacteau of this decision (Pacteau 1981), in which he concludes by affirming the punitive character of this measure in practice. According to this scholar, it would be more clear and efficient to officially recognise this real nature of expulsion measures. See for instance Guimezanes 1990, for a study of the nature of deportation orders. The article evidences the connection existing in practice between expulsions and commitment of crimes, and argues, moreover, that the logical link between the two should not actually be rejected. It should be however officially admitted, in order to confer the guarantees inherent in punitive measures. According to this scholar, the personal impact of expulsions is not smaller than the one of criminal sanctions. An equivalent degree of protection is thus necessary. See for instance CE, arreˆt 2 de´cembre 1992, Mme. Parouty. See, among others, Chapus 2000, p. 710, arguing that the classification of expulsions as administrative measures necessarily renders moots the question of double jeopardy. Confirming this view, Rene´ Chapus refers to the decisions of the Cour de Cassation (the highest court for civil and criminal matters). In its decision of 1 February 1995, Hamoudi, the Court stated that expulsions do not have the character of sanctions but of police administrative measures, and are thus of a preventive nature, exclusively directed to the safeguarding of public order and security. In this way, the Court denied that the alien expelled after a criminal conviction could be regarded as the object of a double sanction. See the decision 79-109 of 9 January 1980. See the decision 92-307 of 25 February 1992. See, on this, Genevois 1992a, p. 190, and Julien-Laferrie`re 1992a, p. 660. This is also implicit in the recent decision 2003-484 of 20 November 2003 (see paragraphs 68-71). In the decision 82-155 of 30 December 1982, the Conseil inaugurated this case law. In the 1982 case, the Conseil defined the possibility for the legislator to establish administrative sanctions under the double condition of (1) excluding sanctions that deprive of personal liberty and (2) subordinating administrative repression to the constitutional principles that guide criminal law. As argued by Justin Kissangoula, the constitutional decision 86-216 of 3 September 1986 is already significant from this point of view, the Conseil having then set the grounds for its later reasoning (Kissangoula 2001, pp. 477-478). According to this author, though, the limits defined by the Conseil on that occasion are extremely faint and only intelligible in light of its subsequent decisions. Indeed, the 1986 decision precisely legitimised a law reform that made the imposition of expulsions easier. This reform, introduced by the first Pasqua law, removed the condition of ‘‘seriousness’’

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262.

263. 264. 265.

until then required in relation to the threat to public order (menace grave) in order to enforce expulsions. Likewise, the reform reduced the categories of aliens protected against deportations. The Conseil in effect rejected the referral presented against the reform and declared that, as long as all the circumstances were to be considered in the adoption of the decision, the legislator could allow for public order to prevail. In this sense, Justin Kissangoula insists on the need to follow the reasoning of the Conseil through its later case law. For instance, in the decision 93-325, he sees a restriction of the possibilities of use of the notion of public order (see paragraphs 20 and 56 of the decision, concerning different isolated issues). See paragraph 13. It should be underlined, however, that the Conseil proceeded to this delimitation of the use of the clause on public order precisely in a decision in which the limits to this clause had already been introduced by the legislator. In this sense, the Conseil simply confirmed the legitimacy of such an option and defended it from the criticisms raised by the opposition in parliament. CE, Ass., arreˆt 2 novembre 1973, Societe´ Anonyme ‘‘Librairie Franc¸ois Maspero’’. For an analysis of this decision and its contextualisation in the general jurisprudential evolution of the administrative techniques of control, see Long, Weil, Braibant, Delvolve´, and Genevois 2001d. The question before the Court concerned the legality of the administrative implementation of a regulation based on the discrimination of foreign publications. The Conseil d’E´tat, which had traditionally refused to proceed to any sort of control in the sphere of discretionary prerogatives, accepted to implement on this occasion the technique of the erreur manifeste d’appre´ciation. It considered however that no manifest error had been then committed by the administration. CE, Ass., arreˆt de 23 juillet de 1974, Ferrandiz Gil Ortega. In order to justify its competence, the Court referred to Article 48 of the Ordonnance of 31 July 1945 (n 45-1708), on the right to demand from the courts the stay of the execution of an administrative measure, and argued that this conferred upon the Court the power to intervene in the sphere of all administrative decisions, including expulsions. The Court thus claimed that the 1953 reform of the Code des tribunaux administratifs could not be interpreted as intending to deny the right to demand the suspension of administrative decisions. Finally, the Court denied in this case the suspension, by arguing that the necessary conditions were not fulfilled. For the reaction of the French scholarship to this controversial decision, see Drago 1975. CE, arreˆt 3 fe´vrier 1975, Pardov, in which the Court declared illegal, due to erreur manifeste d’appre´ciation, the expulsion of a refugee. The deportation had been ordered on the grounds of the refugee’s irregular entry into the territory, as well as on its lack of satisfactory economic resources. CE, Ass., arreˆt 8 de´cembre 1978, Ministre de l’Inte´rieur c/ Benouaret and CE, Ass., arreˆt 8 de´cembre 1978, El Kaamouchi. See on this Hagelsteen 1979 (Conclusions du Commissaire du Gouvernement), insisting on the necessity of reserving expulsions for only extreme cases. CE, Ass., arreˆt 13 mai 1977, Perregaux. CE, Ass., arreˆt 18 juin 1976, Moussa Konate´. See, however, Pacteau 1977, arguing that this decision does not really follow the criteria set out in the Gil Ortega decision and that it could even represent a regression with respect to those earlier criteria. Although the Court in this decision did admit the suspension of the expulsion, the final solution could have actually been different. This author considers that the Court was not sufficiently clear when affirming the need to

266.

267.

268.

269.

270. 271.

272.

order the suspension, and left instead the final choice up to the subjective evaluation of the administrative judge. From this point of view, the decision of 11 July 1980 offers a particularly interesting and original reasoning (CE Ass., arreˆt 11 juillet 1980, Ministre de l’Inte´rieur c/ Mme. Montcho). It represents a further step in the development of the mechanism of suspension as a way to prevent the severe consequences of expulsion. In this case, the suspension was not ordered in relation to an executive measure (as it had been required until then) which, as such, modified in a negative sense the situation of the person affected. The Court admitted that the prejudice could also derive from the denial of the residence permit. Ultimately, the Court thus accepted to consider the situation of an alien who intended to be joined there by his second spouse although he did not fulfil the administrative requirements for a lawful permanence: he only enjoyed de facto residence in France. See Rougevin-Baville 1981 and Feffer and Pinault 1980a. This was corrected in the later decisions of the Court. See for instance CE, Sect., arreˆt 13 novembre 1987, Tang kam Keung. See Azibert and Boisdeffre 1987b. The extraordinary aspect of the Montcho decision is the declaration by the Court that the qualification given by the administration to polygamy as contrary to public order constituted an erreur de droit. However, this was also rejected in the later evolution of the case law. See for instance, the Conseil Constitutionnel’s decision 93-325 of 13 August 1993. According to the Conseil (paragraph 77), the exclusion by the law of polygamous marriages is legitimate since it corresponds to France, the host country, to define what constitutes a ‘‘normal family life’’. This approach was implicitly confirmed in its decision 97-389 (paragraph 37). See Genevois 1976. The Commissaire du Gouvernement is the member of the administrative jurisdiction who is in charge of presenting before the Court, in the form of conclusions, the solution that, according to the positive law and to the Commissaire’s own independent criteria, appears as the most appropriate one. Following the conclusions presented by the Commissaire du Gouvernement, and on the grounds of the procedural nature of the rule at stake, the Court proceeded to a full control (controˆle entier) of the decision and thus condemned this breach. Different degrees of control were in this way combined in this decision The protection of aliens during the stage of execution of expulsions became a topic increasingly analysed by the case law. Interesting from this perspective is the Zemma decision (CE, Sect., arreˆt 4 juillet 1980, Zemma) concerning the – at the time – common administrative practice of imposing a regime of suspensions, set on a regular threemonth basis, despite the lack of legal grounds for that practice. See Feffer and Pinault 1980b, underlining the contradiction that signified ordering an expulsion on the grounds of the threat to public order while, at the same time, imposing quasi automatically a regime of administrative suspensions that allowed the maintenance of the alien in the territory. CE, Sect., arreˆt 24 juillet 1981, Belasri. CE, Sect., arreˆt 13 janvier 1988, Abina. The Court, following the reasoning of the Commissaire du Gouvernement (Schrameck 1988) considered that the administration had not made sufficiently clear the reasons that justified the expulsion. According to Schrameck, even if the 1979 Act exempts emergency cases from the obligation to justify, this exemption is restricted to cases of material impossibility. Furthermore (he argued), the respect of the obligation of justification should be proved with special attention in emergency procedures, given that the persons affected by the expulsion have not had the opportunity to defend themselves. The administrative case law found different ways to limit these wide powers of the administration concerning aliens. An initial approach was the condemnation of the administrative practice of imposing restrictive immigration policies through mere

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273. 274. 275. 276.

277. 278.

279.

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administrative circulars. The early case law of the Conseil d’E´tat opposed this by declaring that circulars did not have the necessary hierarchical rank and, therefore, were not sufficient to introduce modifications to the norms in force – normally acts or regulations. See, for instance, CE, arreˆt 13 janvier 1975, Da Silva et Confe´de´ration franc¸aise de´mocratique du travail, concerning the restriction of work permits, CE, arreˆt 24 novembre 1978, Mouvement contre le racisme, l’antise´mitisme et pour la paix, regarding the state’s financial aide to promote the return of aliens to their home countries (aides au retour), CE, arreˆt 27 septembre 1985, Gisti (54.114), on the implementation of the new 1981 Act in the so-called ‘‘territoires-d’outre-mer’’, and CE, arreˆt 27 septembre 1985, Gisti (47.324), on the restriction of the conditions of aliens’ entry and permanence. CE, Ass., arreˆt 29 juin 1990, Engin and CE, Ass., arreˆt 29 juin 1990, Hablani. See Article 22 bis of the 1945 Ordonnance and, specifically, its section IV, excluding the suspensive effect for the appeal. La Verpillie`re 1990. These judicial techniques also expanded to other areas such as the conferral of work permits. Illustrative of this are the Lachger and Abarchih decisions, both of 10 July 1987, regarding the denial of permits to exercise a professional occupation (carte de commerc¸ant e´tranger). The Court actually combined in these decisions the techniques of the erreur manifeste d’appre´ciation and of the erreur de droit, giving however different solutions in each case (CE, Sect. arreˆt 10 juillet 1987, Lachger and CE Sect., arreˆt 10 juillet 1987, Abarchih). See Azibert and Boisdeffre 1987c. According to these authors, in the Abarchih case, the Court based its review on the erreur de droit, while it should have implemented the technique of the erreur manifeste d’appre´ciation. In Lachger, instead, the Court did implement this latter, but it did not consider that this error had been committed by the administration. The ultimate problem limiting the capacity of the Court to proceed to a more thorough control was, according to these scholars, the lack of precise legislative criteria. See Julien-Laferrie`re 2000, pp. 162-169, for an overview of the types of administrative judicial review that exist in aliens law. See, for instance, CE, Ass., arreˆt 6 novembre 1987, Buayi. For an analysis of this decision, see Azibert and Boisdeffre 1987a. According to these authors, although the Court refused to go as far as suggested by the Commissaire du Gouvernement (Vigoroux 1988), it nevertheless proceeded to an important delimitation between both types of decisions. In this way, a full control on the decision determining the host country to which the alien is expelled becomes possible. Since this decision is qualified as a measure of execution of the expulsion order, it is no longer affected by the principle of restricted control. The Commissaire du Gouvernement had however proposed to extend this type of control to every measure concerning the execution of the expulsion. Article 26 of the 1945 Ordonnance: ‘‘L’expulsion peut eˆtre prononce´e: a) En cas d’urgence absolue, par de´rogation a` l’article 24; b) Lorsqu’elle constitue une ne´cessite´ impe´rieuse pour la suˆrete´ de l’Etat ou la se´curite´ publique, par de´rogation a` l’article 25. En cas d’urgence absolue et lorsqu’elle constitue une ne´cessite´ impe´rieuse pour la suˆrete´ de l’Etat ou la se´curite´ publique, l’expulsion peut eˆtre prononce´e par de´rogation aux articles 24 et 25. Les proce´dures pre´vues par le pre´sent article ne peuvent eˆtre applique´es a` l’e´tranger mineur de dix-huit ans.’’ See for instance CE, Ass., arreˆt 11 octobre 1991, Diouri. For an analysis of the decision, see Maugue¨ and Schwartz 1991. According to the conclusions presented by the Commissaire du Gouvernement (Saint Pulgent 1991), the condition established by Article 26 of the Ordonnance had to be considered as cumulative.

281. CE, Ass., arreˆt 8 de´cembre 1978, GISTI, CFDT et CGT. 282. On the basis of Article 8 ECHR, the European Court has developed a consistent and fundamental case law in the sphere of aliens, with a great impact on the legislation of the European countries. See later, in chapter 5. Article 8 ECHR provides: (1) ‘‘Everyone has the right to respect for his private and family life, his home and his correspondence.’’ (2) ‘‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’’ 283. CE, Ass., arreˆt 29 juin 1990, Pre´fet du Doubs c/Mme. Olmos Quintero and CE, Ass., arreˆt 29 juin 1990, Imambaccus. 284. Compare for instance with CE, arreˆt 23 fe´vrier 1990, Sioui, concerning also the reconduite a` la frontie`re. The Court refused on this occasion to go beyond the control of the external legality of the act. See also Abraham 1990. 285. See Article 22 of the 1945 Ordonnance. 286. See Fauge`re 1990, offering a delimitation of the then innovative legal possibility of reconduite a` la frontie`re with respect to expulsions, as well as of the different judicial techniques of review. 287. In 1981, France ratified the protocol introducing the possibility of individual appeal before the Strasbourg Court. Thus, according to the Commissaire du Gouvernement, the risk of a condemnation of France should have induced the Conseil d’E´tat to start considering the family and personal situation of the alien. 288. CE, Ass., arreˆt 19 avril 1991, Babas and CE, Ass., arreˆt 19 avril 1991, Belgacem. 289. See, for instance, CE, arreˆt 25 juillet 1980, Touami. 290. This decision closed a lengthy debate in France by proclaiming the primacy of international treaties over subsequently enacted national legislation. It thus represented a fundamental modification to France’s legal order and, specifically, a transformation of the traditional interpretation of Article 55 of the Constitution, by implicitly authorising the courts to control the conformity of internal norms with international treaties. Article 55 of the Constitution reads: ‘‘Les traite´s ou accords re´gulie`rement ratifie´s ou approuve´s ont, de`s leur publication, une autorite´ supe´rieure a` celle des lois, sous re´serve, pour chaque accord ou traite´, de son application par l’autre partie.’’ 291. See on this Van Tuong 1991. 292. See in this sense the conclusions presented by the Commissaire du Gouvernement in the decisions Olmos Quintero and Imambaccus. 293. CE, arreˆt 18 janvier 1991, Beldjoudi. 294. Abraham 1991. 295. See later, in chapter 5. 296. According to the Commissaire du Gouvernement, the Conseil d’E´tat should not object to the implementation of the proportionality test, since the Court already proceeded in other spheres to this type of thorough control – e.g. expulsions ordered through procedures of emergency. 297. See Julien-Laferrie`re 1991, pp. 555 and 556, analysing the categories of aliens that are thereby protected as a result of the combination of Article 25 of the Ordonnance and Article 8 ECHR. In those specific cases presented before the Court, none of the categories was to be found protected by Article 25 of the Ordonnance. The case of Babas was not mentioned in either of the provisions. The technique of the erreur

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298. 299.

300. 301.

302. 303.

304.

305.

manifeste d’appre´ciation, following the precedent of Doubs and Imambaccus, was however implemented. Belgacem, instead, was found to be directly protected by Article 8 ECHR. As pointed out by Franc¸ois Julien-Laferrie`re, the implementation of Article 8 in this case represented the solution to a common administrative practice long questioned in France: the expulsion of young people back to their countries of origin, despite their having personal lives solely in France. See above, on precarious rights. Article 66 of the Constitution: ‘‘Nul ne peut eˆtre arbitrairement de´tenu. L’autorite´ judiciaire, gardienne de la liberte´ individuelle, assure le respect de ce principe dans les conditions pre´vues par la loi.’’ This was immediately confirmed in its following decisions. See for instance the decision 86-216 of 3 September 1986 and the decision 89-216 of 28 July 1989. See, however, the analysis and interpretation by Justin Kissangoula of this process of jurisprudential construction of the right of aliens to personal liberty (Kissangoula 2001, pp. 362 and ff.). In the view of this author, the category of the ‘‘fundamental principles of the laws of the Republic’’ was initially chosen by the Conseil as the basis for aliens’ right to personal freedom, instead of referring directly to Article 66 on individual liberty. According to this author, the first of these grounds allowed for greater possibilities of protection. If it had chosen Article 66, the juge judiciaire would have been the exclusively competent judge for the protection of this right. This would have paralysed any possibility of control of the administrative measures, since the control of public prerogatives corresponds exclusively to the administrative judge. Moreover, in the opinion of this author, in the early years, the Conseil did not enjoy in any event the legitimacy necessary to act otherwise. Therefore, the conferral on aliens of such a strong protection as the one implied in Article 66 (a universal protection that excludes any kind of discrimination) would have been contested. According to this interpretation, the Conseil opted thus for introducing the competence of the juge judiciaire through what this author presents as ‘‘de´tachabilite´’’: after being prolonged, the administrative measures of detention affect directly personal liberty. The juge judiciaire is then competent to exercise control, on the basis of Article 66, which implies the conferral of an absolute protection. De´cision n 92-307 DC du 25 fe´vrier 1992 (loi portant modification a` l’Ordonnance n 45-2658 du 2 novembre 1945 modifie´e). In the 1992, during the parliamentary discussions on the reform of French law to comply with the Schengen Implementation Agreement, the then Minister of the Interior (M. Marchand) introduced a new mechanism of detention of aliens: the possibility for the administration to retain, in the international areas of harbours and airports (renamed ‘‘zones de transit’’), aliens not admitted in the territory, asylumseekers during the evaluation of their application, and aliens in transit who were rejected by the country of destination and so stranded in France. Indeed, the Conseil refused to assimilate this new mechanism to administrative detention, as claimed by a large sector of the scholarship. For a critique, see Lochak 1992 and Julien-Laferrie`re 1992a. As these authors argue, in practice, both institutions may have the same effective impact on individual liberty. According to Justin Kissangoula, this is the truly innovative aspect of the decision: the fact of having admitted, for the first time, the possible violation of aliens’ right to individual liberty as a result of the imposition of administrative measures such as detention, and not just because of their prolongation (Kissangoula 2001, pp. 378-379). See on this also Gaı¨a 1992 and Genevois 1992a. However, signs of this evolution in the reasoning of the Conseil may also be found in its previous case law. As underlined by Filali Osman, in the decision 89-261, the Conseil had already admitted that an administrative measure of detention could cause a violation of the right of the alien to

306. 307. 308.

309. 310.

311. 312. 313.

individual liberty (Osman 1990, p. 134). According to this author, this shows a clear evolution with respect to the position held in 1980 (decision 79-109). See Genevois 1986. See above, on precarious rights. See Genevois 1993 and Favoreu and Philip 1993. This broad conception of the right to personal freedom was in fact used by the Conseil in order to declare unconstitutional different provisions of the law other than the ones concerning administrative detention (re´tention administrative). For instance, concerning judicial detention, the Conseil qualified this measure as a deprivation of liberty and it therefore subordinated its constitutionality to the inclusion of criminal law guarantees. Likewise, the Conseil declared contrary to the Constitution the provision of the law intending to prevent sham marriages. According to the Conseil, the possibility and the conditions of suspension of the celebration of the marriage foreseen in the law were contrary to the right to individual liberty (paragraph 107). From this perspective, see also the following administrative case law legitimising legal mechanisms to fight marriages of convenience: CE, Sect., Avis n 137342, 9 octobre 1992, M. Abihilali, and Abraham 1993b. Also according to this large definition of the right to individual liberty, the Conseil referred in this decision to the liberte´ d’aller et venir as a component of this right (paragraph 103), and as including the right to leave the territory. See, also in this case, related administrative case law: CE, arreˆt 22 mai 1992, Gisti (Abraham 1993a), and CE, arreˆt 9 novembre 1992, Pre´sident du gouvernement du territoire de la Polyne´sie franc¸aise, Pre´sident de l’Assemble´e territoriale de la Polyne´sie franc¸aise (Lasvignes 1993). However, it should be noted that the subsequent case law of the Conseil has taken the opposite direction. The very recent decision 2003-484 of 20 November 2003 is clear evidence of this. The Conseil has declared unconstitutional the device foreseen in the law to combat sham marriages, but has nevertheless seemed to assume a more restricted use of the term ‘‘individual liberty’’. When affirming the freedom to marry, it has expressly referred to the term ‘‘personal freedom’’ in the sense of Articles 2 and 4 of the Declaration of 1789. More importantly, this decision also shows a regression in relation to the guarantees previously consolidated of the right to individual liberty. After the decision 93-325, the law reforms undertaken managed to increase the maximum duration of the detention of aliens, without this being censured by the Conseil Constitutionnel. Decision 2003-484 confirms this trend. It has declared constitutional the detention of aliens up to thirty-two days, as opposed to the maximum twelve days established in the previous reform of 1998 of the 1945 Ordonnance. CE, Ass., arreˆt 8 de´cembre 1978, GISTI, CFDT et CGT. See, for instance, CE, 22 mai 1992, Mme. Larachi (on the refusal of a permanence permit), CE, 22 mai 1992, Ministre de l’Inte´rieur c/ Mme. Halima Zine El Khalma (on the refusal of a residence permit), or CE, 11 juin 1997, Ep. Talipoglu (on the refusal of a visa). The Conseil d’E´tat declared illegal the decisions adopted by the administration in these three cases. See also however CE, Sect., arreˆts 27 mai 1994, M. Oncul et Mong’Anabola (2 espe`ces), which express a restrictive trend in this sphere. In these cases, the Court denied the obligation of consulting the Commission de se´jour in relation to the conferral of the permanence permit. The Court followed the conclusions presented by the Commissaire du Gouvernement (Abraham 1995b), on the need to prevent the use of the Commission to protect unlawful situations. See above, in section II.1 on emergent rights. CE, Sect., arreˆt 10 avril 1992, Aykan, CE, Sect., arreˆt 10 avril 1992, Marzini and CE, Sect., arreˆt 10 avril 1992, Minin. However, they are also relevant from the perspective of the compatibility between the ECHR and national law. In this sense, they continue the process initiated with Babas

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315.

316.

317.

318. 319.

320.

321. 322.

and Belgacem. Both Marzini (on the denial of a permanence permit) and Minin (on the derogation of an expulsion measure, which thus poses the question of the right of the alien to re-enter the territory) represent the simplification of the procedure implemented until then. The main difficulty met when combining these two systems (the ECHR and the 1945 Ordonnance) was indeed the different material domain contemplated by each of them. The Court, in these decisions, instead of proceeding to a separate control, incorporated the control of the erreur manifeste d’appre´ciation into the proportionality test implied in the ECHR. See Maugue¨ and Schwartz 1992. As previously indicated, the Act of 11 July 1979 established a general obligation for the administration: the need to justify with reasons, or motivation, the administrative acts that imply a restriction of rights. After examining the specific circumstances of the case, the Court considered that the administration had not inflicted an excessive harm on the alien by denying the entry visa. The alien was married to a French national and had been condemned in Germany for the traffic of drugs. According to the opinion of scholars such as Franc¸ois Julien-Laferrie`re, the introduction of Article 8 ECHR is, in the final analysis, not as revolutionary as had been expected. In his view, although the introduction in France of this provision does expand the possibilities of judicial control, the final subordination to the notion of ‘‘general interest’’ maintains this sphere subordinated to discretionary administrative prerogatives. For consideration of this and a more general analysis of the evolution of the case law in the field of family protection, see Julien-Laferrie`re 1992b. Further, the practical consequences of the extension of this technique of control to entry visas are also of great importance. With respect to expulsions or reconduites a` la frontie`re, the number of decisions each year concerning entry visas is indeed far higher (Maugue¨ and Schwartz 1992). The astreinte represents a pecuniary sanction designed to urge the administration to effectively proceed to the execution of a decision. The injonction refers to the possibility, conferred in 1995 on the administrative jurisdiction, to compel the administration to act, in order to assure the execution of a judicial decision. Most importantly, the re´fe´re´-liberte´ represents an emergency procedure introduced in 2000, and through which the administrative judge can order all the measures necessary for the protection of a fundamental liberty that is being illegally restricted as a result of the exercise of public prerogatives. The restriction has to be serious and manifestly illegal (grave et manifestement ille´gale). CE, Sect., arreˆt 4 novembre 1994, Al Joujo, Chiker and CE, Sect., arreˆt 4 novembre 1994, El Alaoui. See Abraham 1995a for a systematic definition of the obligations that the administration has as a result of the introduction of the astreinte in French administrative law. The Court considered that the permanence permit derogated by the expulsion comes back to life, but only for the period of time that still remains at the moment of the judicial intervention. Therefore, the alien in such circumstances does not need to apply for a new entry visa. If the permit has instead expired by then, the alien has to initiate anew the whole process in order to try to re-enter the territory, the administration not being obliged to grant this new entry. CE, Sect., Avis 30 novembre 1998, M. Berrad. See also Lamy 1999. See on this Guettier 1999. According to this author, the 1998 reform of the Ordonnance (loi Cheve`nement) intended precisely to adapt the national standards to the European ones. Since the reform, Article 12 bis of the Ordonnance recognises the

323. 324. 325.

326. 327. 328.

329.

330.

331.

332.

right of holders of a temporary residence permit (carte de se´jour temporaire) conferred in the framework of the right to private and family life to exercise a professional activity. In this sense, it is the influence of the ECHR on the national legislation that explains this increasing protection. Nevertheless, the resulting protection (from the combination of both texts) is finally superior to the one foreseen in the text of the ECHR. This represents the extraordinary aspect of the decision. This mechanism was introduced in Article L-521-2 of the Code de Justice Administrative by the Act of 30 June 2000. CE, 30 octobre 2001, Mme. Tliba. However, as also stated by the Conseil d’E´tat in relation to the implementation of this new mechanism in the sphere of aliens, the exercise of rights and freedoms by aliens in the French territory is subordinated to the regularity of their presence in France (CE, 5 mars 2001, Pre´fet de l’He´rault c. Hajjaj). CE, Ass., arreˆt 8 de´cembre 1978, GISTI, CFDT et CGT. See also Dondoux 1979. Article 10 of the Preamble of the 1946 Constitution: ‘‘La Nation assure a` l’individu et a` la famille les conditions ne´cessaires a` leur de´veloppement.’’ The recognition of the right to family reunification thus implied the imposition, for the first time in the field of aliens law, of positive obligations for the state. It therefore signified overcoming the stage of first protection of aliens, which was mainly limited to negative obligations, as the way to preserve the minimum standards to assure respect for human dignity. See on this Hamon 1979, Long, Weil, Braibant, Delvolve´, and Genevois 2001b, Dutheillet de Lamothe and Robineau 1979. However, for a more critical analysis of this decision, see Delvolve´ 1979, arguing that although the right to family life achieved greater solemnity by this intervention of the Court, its practical effectiveness remained nevertheless questionable. According to this author, the mechanism ultimately introduced by the Court (proportionality), in order to assure the respect of the right by the government, signified that the final control fell to the administrative judge, while the right could also be assured by requiring the direct intervention of the legislator. See for instance the decision 86-216 of 3 September 1986, in which the Conseil admitted as legitimate the reduction by the legislator of the category of people protected against expulsions because of their family links (paragraph 18). In this decision, the Conseil Constitutionnel declared the exclusion of students from the possibility of family reunification, as well as the mechanisms of administrative control over marriages contrary to the right to lead a normal family life. Likewise, the Conseil specified the criteria to interpret certain provisions (re´serves d’inte´rpretation), necessary to grant the respect of this right and at the same time thus avoid declaring the unconstitutionality of the Act. According to these criteria, the protection of children had to justify exceptions to the requirement foreseen in the law of concentrating family reunification in one single act. Likewise, as declared by the Conseil, the two-years requirement of previous residence had to be understood as allowing the presentation of the application before the expiration of this deadline. For an analysis of the Conseil’s reasoning in this decision, see Genevois 1993. From the perspective of the reinforcement of the status of aliens through the more specific sphere of family protection, see also, De´cision n 98-399 DC du 5 mai 1998 (loi relative a` l’entre´e et au se´jour des e´trangers en France et au droit d’asile). In this decision, the Conseil ratified the introduction by the legislator of the obligation to justify the denials of entry visa in the case of certain categories of aliens with family ties. See, on this, also Schoettl 1998. De´cision n 97-389 DC du 22 avril 1997 (loi portant diverses dispositions relatives a` l’immigration). In this case, the Conseil analysed a restrictive reform of the 1945

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335.

336. 337.

338.

339.

Ordonnance, this time introduced by the so-called ‘‘loi Debre´’’ (M. Debre´ was the Minister of the Interior at the time), which had given rise to all kinds of social protests and debates in France. The polemic surrounding this reform had already been anticipated by the regularisation of the ‘‘sans-papiers de Saint Bernard’’. Likewise, from the perspective of the judicial construction of a constitutional status, a further decision should be mentioned here, given the importance of the formula used in it by the Conseil and the idea of equality that it entails. However, it does not directly refer to the entry and permanence of aliens, but to the more specific question of social protection: De´cision n 89-269 DC du 22 janvier 1990 (loi portant diverses dispositions relatives a` la se´curite´ sociale et a` la sante´). For the first time in this decision, the Conseil used the expression of ‘‘liberties and fundamental rights of constitutional value that are afforded to all persons residing within the territory of the Republic’’. The Conseil has relied on this formula to support its later reasoning concerning aliens. In the decision 89-269, the Conseil declared that the French principle of equal protection entitled resident aliens access to government benefits on the same basis as French citizens. See on this Lecucq 1997, Luchaire 1997 and Julien-Laferrie`re 1997. This last author points out the contrast that results in this decision between the cartes de re´sidence and the cartes de se´jour temporaire, the conferral of which being still subordinated to simple threats to public order. In any case, the possibility of denying the renovation of the residence permit still subsists for the cartes de re´sidence in case of ‘‘serious threat’’ (menace grave) (see Zarka 1997). See, for instance, the provision foreseen in the text of the Constitution (Article 42), which explicitly refers to the Spanish nationals abroad and to the need to promote their return to Spain: ‘‘El Estado velara´ especialmente por la salvaguardia de los derechos econo´micos y sociales de los trabajadores espa~ noles en el extranjero, y orientara´ su polı´tica hacia su retorno.’’ A further evidence of the reality of Spain as a country of emigration is to be found in Article 24.3 of the Civil Code, which regulates the possibility for the descendants of Spanish emigrants to conserve Spanish nationality. STS (Sala de lo Contencioso-Administrativo), Sentencia de 25 de junio de 1980, Kanayo Daswani v. Gobernador Civil de las Palmas (RAJ 1980/3344). See, for an analysis of this decision Miralles Sangro´ 1981 and Pi~ nar Ma~ nas 1980, both of them critical with what they considered the bottom-line problem: the lack of a unified normative in the sphere of immigration. A specialised norm on immigration was only approved in 1985 (Ley Orga´nica 7/1985, de 1 de julio, sobre derechos y libertades de los extranjeros; hereinafter the Aliens Act of 1985). See, in this sense, Ulmer, Eva Carolin 97, in relation to the Spanish immigration policy inaugurated after the Franco era. This dissertation interprets the responses given in this sphere in reaction by all political parties to the country’s immediate political past. An example of this can be found in the Preamble of the Aliens Act of 1985 which proclaimed the importance of the rights of the person and, specifically, the need to recognise for aliens the protection inherent in human dignity. At the same time, however, the text of the Act was of very restrictive content and was based on wide police prerogatives. Although this contradiction also characterises the legislation of other countries, it can perhaps be interpreted as particularly significant in the case of Spain. In a way, it demonstrates the need to legitimise from human rights parameters the new constituted democracy, or, even, the lack of a political and democratic culture. Indeed, as argued in the analysis by Eva Ulmer, referred to above, of the Spanish parliamentary discussions, there was an important consensus among political parties at the moment of the approval of the first Aliens Act in 1985, all of them having insisted on the importance of human rights and of a clear rupture with Spain’s

340.

341. 342.

343.

344.

345. 346.

347.

immediate fascist regime. However, this discourse was not actually reflected in either the content of the law, or in the aliens law practice. See, also in this sense, Calavita 1998. Furthermore, the recent process of discussion of the new Aliens Act of 2000 has broken this initial apparent consensus among parties, this occurring precisely when immigration has become a real issue in Spain. The long expected reform of the Act of 1985 was finally approved in 2000 (Ley Orga´nica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en Espa~ na y su integracio´n social; hereinafter the Aliens Act 4/2000) but was in turn reformed again some months later (Ley Orga´nica 8/2000, de 22 de diciembre, de reforma de la Ley Orga´nica 4/2000; hereinafter the Aliens Act 8/2000). Since then, several isolated reforms have been made to the Act. Article 19 of the Constitution: ‘‘Los espa~ noles tienen derecho a elegir libremente su residencia y a circular por el territorio nacional. Asimismo, tienen derecho a entrar y salir libremente de Espa~ na en los te´rminos que la ley establezca. Este derecho no podra´ ser limitado por motivos polı´ticos o ideolo´gicos.’’ STC 94/1993 (Sala 1a), Recurso de Amparo, Sentencia de 22 de marzo de 1993, Evangelina L. Venzo´n. It is with this decision that the Court consolidated its doctrine on aliens’ freedom of movement. This notwithstanding, the Court had started to define its position on this issue in cases related to the dissolution of marriages between nationals and aliens and to the related issue of the custody of children. For instance, in an auto of 1986 (an ‘‘auto’’ is a reasoned decision that resolves isolated questions that arise during the judicial process), the Court rejected a complaint that a violation of the freedom of residence of a French national had been occasioned by the assignation to the Spanish father of the custody of the children. The applicant had divorced from a Spanish national and had children in Spain. As the Court argued, in spite of its constitutional character, this right can be limited in the case of aliens (ATC 127/1986 (Sala 1a, Seccio´n 2a), Auto de 12 de febrero de 1986). Article 10.1 of the Constitution: ‘‘La dignidad de la persona, los derechos inviolables que le son inherentes, el libre desarrollo de la personalidad, el respeto a la ley y a los derechos de los dema´s son fundamento del orden polı´tico y de la paz social.’’ Article 13 of the Constitution: ‘‘(1) Los extranjeros gozara´n en Espa~ na de las libertades pu´blicas que garantiza el presente Tı´tulo en los te´rminos que establezcan los tratados y la ley; (2) Solamente los espa~ noles sera´n titulares de los derechos reconocidos en el artı´culo 23, salvo lo que, atendiendo a criterios de reciprocidad, pueda establecerse por tratado o ley para el derecho de sufragio activo y pasivo en las elecciones municipales; (3) La extradicio´n so´lo se concedera´ en cumplimiento de un tratado o de una ley, atendiendo al principio de reciprocidad. Quedan excluidos de la extradicio´n los delitos polı´ticos, no considera´ndose como tales los actos de terrorismo; (4) La ley establecera´ los te´rminos en que los ciudadanos de otros paı´ses y los apa´tridas podra´n gozar del derecho de asilo en Espa~ na.’’ STC 107/1984 (Sala 2a), Recurso de Amparo, Sentencia de 23 de noviembre de 1984, Leyes Rosano. The Court had already intervened in this field once before: STC 11/1983 (Sala 2a), Recurso de Amparo, Sentencia de 21 de febrero de 1983, Korkala, on the extradition of an American citizen. However, the nationality of the applicant did not represent an issue in this case. The standing of the applicant (an alien) to bring the constitutional complaint was not even discussed (the recurso de amparo is used to denounce the violation of a fundamental right before the Court). In this sense, limits to the rights conferred on aliens can be introduced through the internal law or the international treaties, but always within the parameters contained in the Constitution. The interpretation of this premise set in Article 13.1 was further

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developed in the later interventions by the Court. For instance, in its fundamental decision 115/1987, resolving the referral lodged against the Aliens Act of 1985 (recurso de inconstitucionalidad), the Court ratified this interpretation of Article 13.1 (STC 115/1987 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 7 de julio de 1987). However, some divergence emerged among the members of the Court when implementing this provision in relation to the rights to peaceful assembly and association. Whereas the majority of the Court declared that the definition of these rights in the Act of 1985 was unconstitutional, by arguing that it did not respect the general guarantees of the Constitution, several members of the Court defended, in a dissenting opinion (voto particular), the limits thus introduced to these rights and moreover rejected the majority interpretation of Article 13. The dissenting members of the Court argued that since Article 14 of the Constitution already allows for differences between aliens and nationals (‘‘Los espa~ noles son iguales ante la ley, sin que pueda prevalecer discriminacio´n alguna por razo´n de nacimiento, raza, sexo, religio´n, opinio´n o cualquier otra condicio´n o circunstancia personal o social.’’), the possibility of different treatment foreseen in Article 13.1 has to be understood as an additional one. They held, therefore, that the possible limits to these rights should not be sought in the Constitution but directly in the national law or the international treaties. They considered that such limits had been respected by the Act of 1985. For a brief analysis of this discussion and, more generally, of the decision, see Miquel Calatayud 1990a and Rodrı´guez-Zapata 1987. 348. Article 13.2 refers in turn to Article 23 of the Constitution, which provides: ‘‘(1) Los ciudadanos tienen el derecho a participar en los asuntos pu´blicos, directamente o por medio de representantes, libremente elegidos en elecciones perio´dicas por sufragio universal; (2) Asimismo, tienen derecho a acceder en condiciones de igualdad a las funciones y cargos pu´blicos, con los requisitos que se~ nalan las leyes.’’ 349. For analysis of this decision, see Ferna´ndez Ferna´ndez and Arce Janariz 1985. 350. An important question put in this case before the Court was however the constitutional evaluation of the legal regime concerning nationals of LatinAmerican countries. While these were often exempted, through bilateral agreements, from the requirement of the residence permit, they were nevertheless still obliged to obtain an authorisation to work. In many cases, this represented a condition that was impossible to fulfil, since obtaining that authorisation was in practice subordinated to the possession of a residence permit. However, the Court avoided analysing this question and simply limited its evaluation to the position of aliens in relation to the right to work. In recent times, these bilateral treaties between Spain and many Latin-American countries – which had been established on the grounds of historical, cultural and linguistic ties – have nevertheless been suppressed progressively. The 1985 Aliens Act represented the first step in this direction. Despite the rhetoric of its Preamble, which insisted on the necessity of preserving a privileged regime for Iberoamericans (given the ‘‘cultural identities’’ and ‘‘similarities’’), the 1985 Act abolished the principle of equality established by the 1969 Act on social rights for those nationals (Act 118/1969 of 30 December 1969). For an analysis of the transformation of these initially privileged regimes, as well as, ultimately, of the idea of ‘‘comunidad hispa´nica’’ on which these privileges were grounded, see, among others, ´ lvarez Rodrı´guez 1990, Miquel Calatayud 1993, Adroher Biosca 1996b, and Vi~ A nas Farre´ 1998. Likewise, see Joppke 2004, chapter 3, analysing the case of Spain. From this perspective, a recent decision of the Tribunal Supremo should be also mentioned: STS (Sala de lo Contencioso-Administrativo), Sentencia de 17 de diciembre de 2002. In this decision the Court confirmed the denial of a working permit to a Peruvian national by arguing that aliens could be legitimately excluded from spheres concerning the state’s protection and public security. According to the Court in the same decision, this is also the case when the maintenance of security is granted by a

351.

352. 353.

354.

355.

356.

private enterprise, as in the case analysed. In these situations, the Court reasoned, even aliens enjoying a privileged status – such as the nationals from certain LatinAmerican countries – can be excluded. However, it should be noted the contradiction that this signifies with respect to the recent admission of aliens in the Spanish army forces (Ley 32/2002, de modificacio´n de la Ley 17/1999, de 18 de mayo de 1999, de Re´gimen del Personal de las Fuerzas Armadas, al objeto de permitir el acceso de extranjeros a la condicio´n de militar profesional de tropa y marinerı´a). Aliens from Latin-American countries are particularly welcomed, on the grounds of the cultural and social – or even religious – affinities (see the declarations in this sense by the Minister of Defence, Federico Trillo, in March 2001, arguing the greater possibilities of ‘‘cultural integration’’ of these nationals; El Paı´s, 20 March 2001). See, in this respect, Freixes Sanjua´n 1997, pp. 154-155, arguing that the Aliens Act of 1985 ultimately represents a violation of the constitutional hierarchy, by subordinating fundamental rights (the ones belonging to aliens on the grounds of their human condition), to the preservation of mere ‘‘legal interests’’ (bienes o intereses jurı´dicos), such as the concession of administrative authorisations such as residence or work permits. According to the case law of the Tribunal Constitucional, such an inversion of the constitutional hierarchical reasoning is only legitimate if specifically foreseen by the text of the Constitution (see STC 22/1984, of 17 February 1984). For a global analysis of aliens’ constitutional status as resulting from this general scheme, see, among others, Santamarı´a Ibeas 1994 and Miquel Calatayud 1995. ATC 55/1996 (Sala 1a, Seccio´n 2a), Auto de 6 de marzo de 1996, in which the Court confirmed the denial of Habeas Corpus by arguing that no violation of the right to personal freedom had been committed. The applicants had been retained in the socalled international areas of Madrid airport. In accordance with the definition of the judge as the ‘‘natural guardian of the individual liberty’’, Habeas Corpus is a judicial procedure directed to prevent the commission of arbitrary detentions by compelling the administration to bring the person detained before the judge. This guarantee is foreseen in Article 17.4 of the Constitution (‘‘La ley regulara´ un procedimiento de ‘‘habeas corpus’’ para producir la inmediata puesta a disposicio´n judicial de toda persona detenida ilegalmente. Asimismo, por ley se determinara´ el plazo ma´ximo de duracio´n de la prisio´n provisional.’’) and was later developed by the Ley Orga´nica 6/ 1984, de 24 de mayo, reguladora del procedimiento de ‘‘Habeas Corpus’’. See, for instance, the decision STC 242/1994, in which the Tribunal Constitucional defined expulsions as the state reaction vis-a`-vis incorrect conduct by the alien, connected with immigration policy considerations (STC 242/1994 (Sala 1a), Recurso de Amparo, Sentencia de 20 de julio de 1994). As argued in the legal literature, the possibility of provisory detention established in Article 17.2 of the Constitution is expressly foreseen for cases of criminal offences (‘‘La detencio´n preventiva no podra´ durar ma´s del tiempo estrictamente necesario para la realizacio´n de las averiguaciones tendentes al esclarecimiento de los hechos, y, en todo caso, en el plazo ma´ximo de setenta y dos horas, el detenido debera´ ser puesto en libertad o a disposicio´n de la autoridad judicial.’’). Thus, in those cases, the person who is the object of the detention is protected by the guarantees that correspond to the criminal process. These guarantees are instead not present when the measure is ordered by the administration in the sphere of immigration. For instance, the intervention of the judiciary is then only accessory. See, in this sense, Heredia Puente and Fa´brega Ruiz 1996, who in turn proceed to a general overview of the arguments raised by the legal scholarship on this question. Article 26.2 of the Aliens Act of 1985 provided: ‘‘En los supuestos a que se refieren los apartados a), c) y f) del nu´mero anterior [a) Encontrarse ilegalmente en territorio espa~ nol, por no haber obtenido la pro´rroga de estancia o, en su caso, el permiso de

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357.

358.

359. 360.

361.

362. 363. 364.

residencia, cuando fueran exigibles; c) Estar implicados en actividades contrarias al orden pu´blico o a la seguridad interior o exterior del Estado o realizar cualquier tipo de actividades contrarias a los intereses espa~ noles o que puedan perjudicar las relaciones de Espa~ na con otros paı´ses; f) Carecer de medios lı´citos de vida, ejercer la mendicidad, o desarrollar actividades ilegales], se podra´ proceder a la detencio´n del extranjero con cara´cter preventivo o cautelar mientras se sustancia el expediente. La autoridad gubernativa que acuerde tal detencio´n se dirigira´ al Juez de Instruccio´n del lugar en que hubiese sido detenido el extranjero, en el plazo de setenta y dos horas, interesando el internamiento a su disposicio´n en centros de detencio´n o en locales que no tengan cara´cter penitenciario. De tal medida se dara´ cuenta al Consulado o Embajada respectivos y al Ministerio de Asuntos Exteriores. El internamiento no podra´ prolongarse por ma´s tiempo del imprescindible para la pra´ctica de la expulsio´n, sin que pueda exceder de cuarenta dı´as.’’ See, for instance, Moya Escudero 1986, who argues that the Act neutralised the principles consolidated through the case law. During the years prior to the approval of the Act, the courts had in effect modulated the restrictive administrative practice in the sphere of detention of aliens (see below on emergent rights). In this sense, the Aliens Act of 1985 signified restating and, moreover, legalising this practice. The Defensor del Pueblo is foreseen by Article 54 of the Constitution as a guarantee of fundamental rights. Reproducing the idea of the Ombudsman, the Defensor’s role is to ensure that the administration respects the fundamental rights recognised in Title I of the Constitution, and to report on this periodically to the parliament. Furthermore, according to Article 162 of the Constitution, the Defensor del Pueblo is one of the actors competent to present a referral questioning the constitutionality of legislative acts before the Constitutional Court. See below. This provision constituted in effect one of the most polemic aspects of the Act. Serious criticism was raised against the Defensor del Pueblo for not having brought this question before the Tribunal Constitucional. See, among others, Miquel Calatayud 1990a. Likewise, see Rodrı´guez-Zapata 1987 censuring the acceptance of this measure by the Court. Whereas the Court seemed to justify the legitimacy of the mechanism of detention by arguing that Article 5 ECHR also foresees this possibility, according to this author, this fact cannot neutralise the degree of protection established by national law. This kind of restrictions on the right to personal freedom are in fact not authorised by national law, the universal character of this right having been moreover declared by the Tribunal Constitucional. Furthermore, as argued by Jorge Rodrı´guezZapata, the cases in which the Act allowed the detention of aliens – mere administrative infractions, instead of criminal offences, as in the case of nationals – evidence the discriminatory character of this measure. See, however, Freixes Sanjua´n 1997, p. 160, note 56, denouncing the consequences that have been observed in the administrative practice concerning these centres. Opposing the arguments held by the Tribunal Constitucional, this author refers to the reports presented by the Defensor del Pueblo to sustain that aliens do not result especially protected in these centres. In fact, the guarantees foreseen for these are even weaker than that corresponding to the ordinary penitentiary regime. STC 115/1987. More generally, for an analysis of this measure, see Alonso Pe´rez 1999. According to the constitutional case law, overruling law should always be avoided as long as an interpretation in conformity with the Constitution is possible. This type of intervention by the Court is qualified in Spanish constitutional law as ‘‘sentencias interpretativas’’, these decisions having a normative content.

365. The Tribunal Constitucional has always affirmed clearly the administrative nature of expulsions. However, this nature has been particularly contested in the case of expulsions ordered in lieu of criminal sentences. Nevertheless, the case law of the Court is also coherent in this respect. See, for instance, STC 242/1994 (Sala 1a), Recurso de Amparo, Sentencia de 20 de julio de 1994. For an analysis of the position of the Court, see Rı´o Ferna´ndez 1998. From a more critical perspective, see Izquierdo Escudero 1997, denying the administrative nature of this measure when it is ordered instead of a criminal conviction. In effect, in Spanish aliens law, expulsions can be ordered through different procedures, each of them determining a different degree of intervention by the judiciary. In the case of the so-called ‘‘governmental or administrative expulsions’’ (expulsio´n gubernativa), which are the most frequent, the intervention of the judge is merely adhesive. They intervene only in order to control the provisory deprivation of liberty, the measure of expulsion being thus exclusively adopted by the administration. Otherwise, the expulsion can be ordered directly by the judiciary (directly, in a criminal procedure), or in substitution of a criminal sentence against which an appeal is no longer possible (sentencia firme). Although the cases in which expulsions can be ordered have been progressively restricted through the different normative reforms, the law still authorises widespread use of these measures. An expulsion can for instance be ordered on the grounds of the mere irregular presence of the alien in the territory or of other administrative wrongs, this constituting a particularly controversial aspect of the law. Though expulsion on the grounds of the irregularity of an alien was repealed in the reform of 2000, it was reinstated during the second reform of the same year (Ley Orga´nica 8/2000). Nevertheless, this question has never been discussed directly before the Tribunal Constitucional. 366. See, in this sense, Adam Mu~ noz 1991, criticising the lack of proportionality of such a mechanism and arguing for the necessity to promote a more active intervention by the judiciary. In the view of this author, by the time the judge intervenes, the violation of the right of the alien to personal freedom has in most cases already occurred, the intervention of the judiciary losing thus its purpose. This was the case in the decision analysed by this scholar (STC 144/1990 (Sala 1a), Recurso de Amparo, Sentencia de 26 de septiembre de 1990), and which represents a confirmation of the position held by the Court in its decision 115/1987. Further confirmation of this position is found in the following decisions: STC 96/1995 (Sala 2a), Recurso de Amparo, Sentencia de 19 de junio de 1995 or STC 182/1996 (Sala 1a), Recurso de Amparo, Sentencia de 12 de noviembre de 1996. From a more practical perspective, see, also in this sense, Heredia Puente and Fa´brega Ruiz 1996, public prosecutors (miembros del Ministerio Fiscal), insisting that the administration tries in practice to avoid all judicial control. 367. Article 103.1 of the CE provides: ‘‘La Administracio´n Pu´blica sirve con objetividad los intereses generales y actu´a de acuerdo con los principios de eficacia, jerarquı´a, descentralizacio´n, desconcentracio´n y coordinacio´n, con sometimiento pleno a la ley y al Derecho.’’ 368. Ley 29/1998, de 13 de julio, Reguladora de la Jurisdiccio´n Contencioso-Administrativa, which has superseded the Act, of the same name, of 26 December of 1956. 369. Article 122 of the Act of 1956, no longer in force. 370. Ley 62/1978, de 26 de diciembre, de proteccio´n jurisdiccional de los derechos fundamentales de la persona. This act has been partially superseded by the reform of 1998, Articles 6 to 10 on administrative judicial review having been repealed. 371. Article 7.4 of the Act 62/1978 provided: ‘‘Deducidos los dicta´menes e informes a que se refiere el pa´rrafo anterior o transcurrido el plazo concedido al efecto, la Sala acordara´ la suspensio´n del cumplimiento del acto impugnado, salvo que se justifique la existencia o posibilidad de perjuicio grave para el intere´s general, suspensio´n que

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200

373.

374. 375.

376.

podra´ concederse con o sin afianzamiento de los perjuicios de cualesquiera otra naturaleza que pudiera derivarse.’’ This provision of the Act is no longer in force. See, on this, Ferna´ndez Rozas 1998, fearing that the introduction of this reform would signify an important regression with respect to the case law in this field. In his view, the reform makes more explicit the tension that already existed – and which he even qualifies as ideological – between two trends: safeguarding fundamental rights as opposed to granting effectiveness to the action of the administration. From this point of view, the reform would represent the imposition by the legislator of the second of these trends, and would thus give priority to a rather restrictive vision of interim relief. At the time of the reform, the more protective trend had started to prevail in the case law. See also Calvo Miranda 1999. Article 130 of the Act of 1998 provides: (1) ‘‘Previa valoracio´n circunstanciada de todos los intereses en conflicto, la medida cautelar podra´ acordarse u´nicamente cuando la ejecucio´n del acto o la aplicacio´n de la disposicio´n pudieran hacer perder su finalidad legı´tima al recurso;’’ (2) ‘‘La medida cautelar podra´ denegarse cuando de e´sta pudiera seguirse perturbacio´n grave de los intereses generales o de tercero que el Juez o Tribunal ponderara´ en forma circunstanciada.’’ In addition, Article 133 foresees the possibility of requiring, from the person demanding the suspension, the presentation of guarantees whenever harm of any type could be caused by the interim relief. See Heredia Puente and Fa´brega Ruiz 1997. See Utrera Caro 1993 and Ferna´ndez Rozas 1998, both analysing the contrast thus resulting between an emerging trend in the judiciary and the legal scholarship, towards the general grant of the suspension, and, on the other hand, the reluctance to authorise the suspension when immigration issues are at stake. According to Jose´ Carlos Ferna´ndez Rozas, this first trend had been strongly reinforced by the fundamental decision of the ECJ, of 19 June 1990, Factortame, which was promptly used as a precedent by the Tribunal Supremo, in a decision of 20 December 1990 (Auto, Sala 3a, seccio´n 5a). According to this principle of European law, the necessity to start a judicial process in order to obtain the recognition of a right cannot end up causing harm to the person to whom this right belongs. Following this reasoning and subsequent developments in Spanish administrative law, in order to authorise the suspension of the administrative act, it would suffice to be able to prove the ‘‘appearance of a right’’. For a thorough and systematic analysis of this case law, see Utrera Caro 1993, referred to above, who concentrates on the judicial decisions adopted during the period between 1989 and 1993 in implementation of the Act 62/1978 on fundamental rights. This author intends to indicate the different trends that existed during that period, and tries thus to observe an evolution in one specific direction. This work is actually completed by a broader and later analysis (Ferna´ndez Rozas 1998), also considered above, proceeding to a global evaluation of that case law in the context of the reform of 1998. In contrast to the study by Sebastia´n Fe´lix Utrera Cano, this author does not restrict his analysis to the special mechanism of the Act 62/1978, but also examines decisions corresponding to ordinary administrative judicial review, which, at the time, was regulated in the Act of 1956. In his view, notwithstanding the need to facilitate the suspension of administrative acts, alternatives to this mechanism should also be foreseen. By referring to the example of Germany, Jose´ Carlos Ferna´ndez Rozas suggests other forms of interim relief, which would confer a more active role on the courts. Finally, this author closes his analysis advocating for the draft of a special norm on interim relief in the field of immigration, since the specificity and particular vulnerability of this sphere are not contemplated in the general response given by the law.

377. ATS (Sala de lo Contencioso-Administrativo), Auto de 11 de octubre de 1990 (RAJ 1990/7.613). 378. ATS (Sala de lo Contencioso-Administrativo), Auto de 24 de octubre de 1990 (RAJ 1990/7.788). 379. ATS (Sala de lo Contencioso-Administrativo), Auto de 6 de junio de 1991 (RAJ 1991/ 4.940). 380. ATS (Sala de lo Contencioso-Administrativo), Auto de 31 de diciembre de 1990 (RAJ 1990/10.246). 381. STC 13/2001 (Sala 2a), Recurso de Amparo, Sentencia de 29 de enero de 2001. 382. Article 14 of the Constitution: ‘‘Los espa~ noles son iguales ante la ley, sin que pueda prevalecer discriminacio´n alguna por razo´n de nacimiento, raza, sexo, religio´n, opinio´n o cualquier otra condicio´n o circunstancia personal o social.’’ 383. Both the 1996 Regulation of execution of the Aliens Act of 1985 and the Act 1/1992 on Public Security (Ley Orga´nica 1/1992, de 21 de febrero, sobre Proteccio´n de la Seguridad Ciudadana) authorised this kind of procedure. 384. See the end of paragraph 9 of the decision. 385. A referral against the definitive text of the Aliens Act of 2000 was presented in 2001 by several autonomous regions (Comunidades Auto´nomas) and by representatives of the opposition parties. However, the corresponding constitutional decision is still pending. 386. See, on this, Gonzalo Quiroga 2001, criticising the acceptance by the Court of such a large use of this type of control. According to this author, this actually contradicts the parameters set by European law which, although accepting these mechanisms of control, restricts their use to specific areas such as control of national border. Basically, though, this author regrets the priority conferred by the Court on a very restrictive and police-oriented vision of aliens law, as well as the fact that the Court has not used the occasion to affirm the constitutional principles that should govern this sphere. 387. See, for instance, the reform of 2000 of the Aliens Act, which was essentially motivated by the need to overcome the dimension of police and public security that prevailed in the previous act. As the authors of this legislative initiative had argued, the new features acquired by immigration required a new normative framework that would contemplate mechanisms of social integration of aliens into the Spanish society. In this sense, the Act approved by the parliament, against the vote of the governing Partido Popular included a series of social rights which were also conferred on irregular aliens, this constituting a fundamental innovation. Nevertheless, this was suppressed some months later in the reform launched by the Partido Popular, after the general elections of 2000, in which this party achieved an absolute legislative majority. ´ lvarez Rodrı´guez 2000, Ruiz de For an analysis of the new Act, see, among others, A Huidobro 2000, Charro Baena and Ruiz de Huidobro 2000a, Charro Baena and Ruiz de Huidobro 2000b, Olive´ 1999, Oliva´n Lo´pez, Vidal de Martı´n Sanz, and Alarco´n Mohedano 2000, Santolaya Machetti 2000, and Orejudo Prieto de los Mozos 2000. 388. See Ruiloba Alvari~ no 1995, criticising the regime then in force for the imposition of administrative sanctions. 389. See, among others, Olivares d’Angelo 1984. 390. For an analysis of the process of practical consolidation of the new Constitution, see Borrajo Iniesta 1991. 391. See, among others, Gonza´lez Rivas 1994.

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392. STS (Sala de lo Contencioso-Administrativo), Sentencia de 3 de julio de 1980, Franz G. D. v. Gobernador Civil de Castello´n (RAJ 1980/3404). Together with its decision of 25 June 1980 (see on precarious rights, section I), it represents the first implementation of constitutional principles in this sphere. 393. Article 24.2 of the Constitution reads in relevant part: ‘‘Todos tienen derecho al Juez ordinario predeterminado por la ley, a la defensa y a la asistencia al letrado, a ser informados de la acusacio´n formulada contra ellos, a un proceso pu´blico sin dilaciones indebidas y con todas las garantı´as, a utilizar los medios de prueba pertinentes para su defensa, a no declarar contra sı´ mismos, a no confesarse culpables y a la presuncio´n de inocencia.’’ 394. For an analysis of this decision, together with the one of 25 June of the same year, see Pi~ nar Ma~ nas 1980. 395. See, for instance, STS (Sala de lo Contencioso-Administrativo), Sentencia de 22 de septiembre de 1981, Alberto C. y Nicole S. (RAJ 1981/3744), STS (Sala de lo Contecioso-Administrativo), Sentencia de 21 de diciembre de 1981, James S. K. (RAJ 1981/5445), and STS (Sala de lo Contencioso-Administrativo, Sentencia de 22 de enero de 1982, Nandor-Istvan L. (RAJ 1982/202). On this latter, see Lo´pez-Font Ma´rquez 1983, contextualising this decision in the protective judicial trend that was then emerging in the field of immigration, which signified the extension of constitutional principles to this field. As this author analyses, the approval of the Constitution signified the automatic abolition of all the pre-constitutional norms that were contrary to the Constitution, such as the Regulations of 1974 and 1978 which until then had represented the basis for the imposition of expulsions. 396. For a brief analysis of the main criteria introduced by the case law, see Miralles Sangro´ 1982, focusing on the decisions of the year 1981. 397. Article 10.2 of the Constitution: ‘‘Las normas relativas a los derechos fundamentales y a las libertades que la Constitucio´n reconoce se interpretara´n de conformidad con la Declaracio´n Universal de Derechos Humanos y los tratados y acuerdos internacionales sobre las mismas materias ratificados por Espa~ na.’’ 398. In effect, Article 10.2 of the Constitution plays a fundamental role in the construction of Spanish aliens law, as well as in the incorporation of Spain into the Western standards of protection of fundamental rights. By referring to the international treaties in order to define the profile of the fundamental rights, this provision allows for the immediate reception in Spain of the entire doctrine and case law of the ECtHR. In this way, it facilitates the alignment of Spain with other European countries already experienced in the phenomenon of immigration and, ultimately, compensates for its years of political isolation. In this sense, with respect to its European counterparts, the later adoption by Spain of a democratic system has made the definition of particularly modern constitutional mechanisms which have enabled a relative quick recognition of rights to aliens possible. 399. STS (Sala de lo Contencioso-Administrativo), Sentencia de 14 de junio de 1984 (RAJ 1984/4626). For an analysis of the decision, see Villago´mez Cebria´n 1986. 400. See, for instance, STS (Sala de lo Contencioso-Administrativo), Sentencia de 13 de febrero de 1984 (RAJ 1984/1052) and STS (Sala de lo Contencioso-Administrativo), Sentencia de 3 de marzo de 1984 (RAJ 1984/1396). 401. However, instead of referring to Article 25.1 of the Constitution (‘‘Nadie puede ser condenado o sancionado por acciones u omisiones que en el momento de producirse no constituyan delito, falta o infraccio´n administrativa, segu´n la legislacio´n vigente en aquel momento.’’), as the Tribunal Constitucional did later (STC 239/1988 of 14 December 1988), the Tribunal Supremo justified this principle on the grounds of Article 103 of the Constitution (‘‘(1) La Administracio´n Pu´blica sirve con objetividad

402.

403.

404. 405.

406.

los intereses generales y actu´a de acuerdo con los principios de eficacia, jerarquı´a, descentralizacio´n, desconcentracio´n y coordinacio´n, con sometimiento pleno a la ley y al Derecho; (2) Los o´rganos de la Administracio´n del Estado son creados, regidos y coordinados de acuerdo con la ley; (3) La ley regulara´ el estatuto de los funcionarios pu´blicos, el acceso a la funcio´n pu´blica de acuerdo con los principios de me´rito y capacidad, las peculiaridades del ejercicio de su derecho a sindicacio´n, el sistema de incompatibilidades y las garantı´as para la imparcialidad en el ejercicio de sus funciones.’’). As an example of the consolidation of this case law, see STS (sala de lo ContenciosoAdministrativo), Sentencia de 18 de septiembre de 1987 (RAJ 1987/6072), in which the Court declared illegal an expulsion ordered on the grounds of allegedly ‘‘unlawful activities’’. As the Court reasoned, the mere isolated act of prostitution is not enough to qualify as such within the meaning of aliens law, the existence of a regular practice being instead necessary. Also, on the more specific question of the evaluation of the proof, see STS (Sala de lo Contencioso-Administrativo), Sentencia de 16 de junio de 1992, which helped to consolidate the case law on the presumption of innocence. Following the Tribunal Constitucional, the Tribunal Supremo distinguished here between the principle in dubio pro reo and the material evaluation of the evidence, this leading however to confirm the expulsion ordered. See, critically, Dı´az Delgado 1992, reproducing the view expressed in the dissenting opinion. The same trend is to be observed in the sphere of residence permits. See, among others, STS (Sala de lo Contencioso-Administrativo), Sentencia de 17 de octubre de 1983 (RAJ 1983/5187), STS (Sala de lo Contencioso-Administrativo), Sentencia de 19 de noviembre de 1984 (RAJ 1984/6220) and STS (Sala de lo Contencioso-Administrativo), Sentencia de 26 de abril de 1985 (RAJ 1985/2878), requiring from the administration a more strict proof of the existence of danger for the public order. Real Decreto 119/1986, de 26 de mayo, de aprobacio´n del Reglamento de ejecucio´n de la Ley Orga´nica 7/1985. In effect, this Regulation of implementation of the Act of 1985 confirmed the restrictive approach of the Act. For an analysis of the normative framework that thus resulted, see, among others, Adroher Biosca 1995, Sagarra i Trias 1991 and Freixes Sanjua´n 1997. A new Regulation was approved in 1996 in response to the critiques of the normative situation (Real Decreto 155/1996, de 2 de febrero). In reality, though, the enactment of a new aliens act is what was generally sought after. Indeed, the Regulation of 1996 intended to compensate for the restrictive and limited orientation of the Act of 1985, going however even so far as to contradict it in certain aspects. For instance, the text of the 1996 decree regulated a permanent residence permit, although no such possibility was foreseen in the Act. For an analysis of the changes thus introduced, see Aprell Lasagabaster 1996. Ultimately, despite the improvements introduced by the Regulation of 1996, the necessity of a global reform became even more evident then. Four more years went by, though, before this was accomplished. See, on this, Moya Escudero 1986. Article 34 of the Aliens Act of 1985 provided: ‘‘Las resoluciones administrativas adoptadas en relacio´n con los extranjeros, sera´n recurribles con arreglo a lo dispuesto en las leyes. En ningu´n caso podra´ acordarse la suspensio´n de las resoluciones administrativas adoptadas de conformidad con lo establecido en la presente Ley.’’ A distinction must be drawn between judicial suspension, which the courts never ceased to affirm, and the effective implementation of that possibility. The latter, as already seen in the section concerning precarious rights (subsection III), was instead received with much more reluctance by the courts. However, as also indicated earlier, the suspension of administrative orders was later admitted progressively. See, for instance, on this general discussion, the following decisions of the Tribunal Supremo,

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407.

408.

409.

410.

411.

412. 413. 414.

415. 416.

which reflect the main aspects of the debate: STS (Sala de lo ContenciosoAdministrativo), Sentencia de 1 de septiembre de 1987 (RAJ 1987/7707), STS (Sala de lo Contencioso-Administrativo), Sentencia de 23 de septiembre de 1987 (RAJ 1987/ 6145), and STS (Sala de lo Contencioso-Administrativo), Sentencia de 19 de enero de 1988 (RAJ 1988/286). In these cases, the Court clarified the distinction between these two main aspects: the abstract possibility of suspension, and the suspension itself, the refusal of which, in the view of the Court, does not necessarily imply the violation of the right to due process. According to the Court, the execution of the act does not impede the possibility of a later control by the administrative courts. In this way, the Court also referred to its case law prior to decision 115/1987 which anticipated the Constitutional Court’s answer to the question of the constitutionality of Article 34 of the Aliens Act, by simply ignoring the prohibition of suspension foreseen in the Act. Article 24.1 of the Constitution: ‘‘Todas las personas tienen derecho a obtener la tutela efectiva de los jueces y tribunales en el ejercicio de sus derechos e intereses legı´timos, sin que, en ningu´n caso, pueda producirse indefensio´n.’’ For a critical view of the reasoning of the Tribunal Constitucional, see Rodrı´guezZapata 1987. This author argues that the principle of non-discrimination would have sufficed to justify the declaration of unconstitutionality. According to the previous case law of the Court, this principle derives directly from the rights inherent in human dignity. Instead, in his view, the Court proceeded to a complicated reasoning that in reality weakened the principle of equality that resulted from its previous case law. See, on this, the decision of the Tribunal Supremo on the new Regulation of implementation of the Aliens Act of 2000: STS (Sala de lo ContenciosoAdministrativo), Sentencia de 20 de marzo de 2003. In this decision, the Court developed further the principle declared by the Tribunal Constitucional in the decision 115/1987, concerning the possibility of suspension of administrative acts, and thus specified the cases in which the suspension is actually possible. Article 53.2 of the Constitution provides: ‘‘Cualquier ciudadano podra´ recabar la tutela de las libertades y derechos reconocidos en el artı´culo 14 y la Seccio´n primera del Capı´tulo segundo ante los tribunales ordinarios de preferencia y sumariedad y, en su caso, a trave´s del recurso de amparo ante el Tribunal Constitucional. Este u´ltimo recurso sera´ aplicable a la objecio´n de conciencia reconocida en el artı´culo 30.’’ On the analysis of the normative framework at the moment of the approval of the Constitution, and before the existence of any substantive case law of the Tribunal Constitucional on this issue, see Calvo Caravaca and Castillo Rigabert 1982. In the view of these authors, the Constitution does not foresee a response to the question of whether aliens can be considered legitimate holders of this right, both options being ultimately equally defendable. However, they personally supported the extension to aliens of the mechanisms of special judicial protection, according to a global interpretation of the Constitution which would also thus include international law. STC 99/1985 (Sala 2a), Recurso de Amparo, Sentencia de 30 de septiembre de 1985, Bowitz. See earlier, on precarious rights. This idea was repeatedly confirmed throughout the Supreme Court’s subsequent case law. See, for instance, STS (Sala de lo Contencioso-Administrativo), Sentencia de 21 de abril de 1987 (RAJ 1987/2986), in which the Court, against the administration, denied that the principle of reciprocity could be an argument to refuse judicial protection. The origin of the lawsuit was based on an accusation of perjured evidence. The active legitimacy of aliens in order to access the Tribunal Constitucional had already been implicitly admitted by the Court in decision 11/1983 (STC 11/1983 (Sala 2a), Recurso de Amparo, Sentencia de 21 de febrero de 1983, Korkala). On that

417. 418. 419. 420.

421. 422.

423. 424. 425.

occasion, the Court directly accepted the examination of the case, without even discussing the foreign condition of the applicant and without, therefore, expressing its view on this matter. Nevertheless, this acceptance was received in the legal scholarship as a deliberate sign of extension to aliens of the recurso de amparo. See, in this sense, Calvo Caravaca and Castillo Rigabert 1984, in a way thus completing their previous analysis (see above, note 411). Ley 1/1996, de 10 de enero, de asistencia jurı´dica gratuita. See Article 2.a) of the Act. STC 95/2003 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 22 de mayo de 2003. The following decision should be noted as expressive of this idea, although the Tribunal Supremo quickly clarified its criteria: STS (Sala de lo ContenciosoAdministrativo), Sentencia de 25 de noviembre de 1985 (RAJ 1985/5674). In this, the Court proclaimed the fundamental right to marry as a universal right and, thus, as including aliens among its holders. As the Court argued, the celebration of marriage gives place to a new legal situation that is incompatible with the possibility of expulsion. In this way, even when the expulsion is ordered before the celebration of the marriage (as it was the case), an alien who has married a national can oppose an expulsion. See, Arroyo Montero 1987, for a brief comment on this decision. Only some years later, though, the Tribunal Supremo rectified its position and thus nuanced the allegedly absolute character of the protection of marriage and family life: STS (Sala de lo Contencioso-Administrativo), Sentencia de 20 de febrero de 1989 (RAJ 1898/1128). According to the Court in this later decision, in order to decide whether the expulsion is still possible, it is necessary to proceed to a balancing of interests. Also indicative of the evolution of the Court, see a later decision in which the Court legitimised the expulsion of an alien married to a national despite the relative relevance of the cause of expulsion argued, the lack of a residence permit (STS (Sala de lo ContenciosoAdministrativo), Sentencia de 7 de febrero de 1991 (RAJ 1991/1035)). For an analysis of the restrictive trend that was further consolidated in this sphere, see Sanjulia´n Puig 1998, analysing the resulting precarisation of the fundamental right to marry, as a result of the fight against illegal immigration. Also on this question, see Blanquer 1998 and Adroher Biosca 1996a. STC 12/1994 (Sala 1a), Recurso de Amparo, Sentencia de 17 de enero de 1994. Article 36.2 of the Aliens Act of 1985 established that aliens having entered illegally the territory could be obliged to leave the country (devolucio´n), no special procedural requirement being necessary for the competent authority to follow. However, this provision had also foreseen an exception in cases of asylum application. This provision provided: ‘‘No sera´ preciso expediente de expulsio´n para la devolucio´n por orden del Gobernador civil de la provincia, de los extranjeros que, habiendo sido expulsados, contravengan la prohibicio´n de entrada en Espa~ na, ni para aquellos que hayan entrado ilegalmente en el paı´s, salvo en el supuesto contemplado en el artı´culo 4.1 de la Ley 5/1984, de 26 de marzo, reguladora del Derecho de Asilo y de la Condicio´n de Refugiado.’’ STC 96/1995 (Sala 2a), Recurso de Amparo, Sentencia de 19 de junio de 1995. See, for instance, STC 144/1990 (Sala 1a), Recurso de Amparo, Sentencia de 26 de septiembre de 1990). For an analysis of this decision, see Adam Mu~ noz 1991. Likewise, further confirming this reasoning, see STC 182/1996 (Sala 1a), Recurso de Amparo, Sentencia de 12 de noviembre de 1996. See, also, STC 66/1996 (Sala 1a), Recurso de Amparo, Sentencia de 16 de abril de 1996, in which the Court explicitly defined the need to justify the reasons, or motivation, underlying the decision adopted as an essential component of the right to due process. Although this requirement is

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ML 48,1/2 426.

206 427.

428.

429. 430. 431.

432. 433.

434. 435.

not expressly foreseen in Article 24.1 of the Constitution, the Court argued that it is however possible to deduce its existence from the combination of Article 24 and Article 120.3 of the Constitution, the latter referring to the obligation of the courts to justify the reasoning followed in their decisions (‘‘Las sentencias sera´n siempre motivadas y se pronunciara´n en audiencia pu´blica.’’). The constitutional case law had declared very early on the need to restrict the use of provisory measures implying deprivation of liberty, although without referring specifically to aliens. See, in this sense, STC 41/1982 (Sala 1a), Recurso de Amparo, Sentencia de 2 de julio de 1982. The Tribunal Constitucional has proceeded to an expansive interpretation of the law in this respect. See, for instance, STC 71/1988 (Sala 2a), Recurso de Amparo, Sentencia de 19 de abril de 1988, in which the Court defined the right to the assistance of an interpreter as an essential component of the fundamental right to defence. In the reasoning of the Court, although the norm that exists on this issue (Ley de Enjuiciamiento Criminal), only contemplates the right to the assistance of an interpreter in certain stages of the criminal procedure, it is also necessary to take into account, due to Article 10.2 of the Constitution, the international norms which exist on this question. This led the Court to proceed finally to a broader definition of this right with respect to its original legal formulation, by affirming the necessity to link the right to defence to the idea of effectiveness. See also, in confirmation of this decision, STC 181/1994 (Sala 1a), Recurso de Amparo, Sentencia de 20 de junio de 1994. However, in this decision, the Court reminded that in order to benefit from this right, the situation of defencelessness has to be real. In other words, the mere condition of being a foreigner does not suffice to obtain such a benefit. Further, on that occasion, the Constitutional Court made explicit reference to the case law of the ECtHR and, specifically, to its decision of 18 June 1971 (Wilde, Ooms and Versyp), in which the Strasbourg Court had affirmed that every person deprived of their personal liberty had the right to a control of legality of the measure at issue with guarantees comparable to those existing in the sphere of criminal law. For an overview of some of this case law, see Rı´o Ferna´ndez 1998 and Alonso Pe´rez 1999. See, for instance, STC 21/1996 (Sala 2a), Recurso de Amparo, Sentencia de 12 de febrero de 1996. See, for instance, STC 86/1996 (Sala 1a), Recurso de Amparo, Sentencia de 21 de mayo de 1996, in which the Court insisted on the particularity of this guarantee and declared that it had not been respected in this case. Furthermore, as the Constitutional Court argued, the principle of equality between the different parties in the judicial process had been violated (principio de igualdad de armas procesales entre las partes), since the alien had not been brought before the judge, whereas the public prosecutor had been heard instead. STS (Sala de lo Contencioso-Administrativo), Sentencia de 20 de marzo de 2003. Real Decreto 864/2001, de 20 de julio, por el que se aprueba el Reglamento de ejecucio´n de la Ley Orga´nica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en Espa~ na y su integracio´n social reformada por Ley Orga´nica 8/2000, de 22 de diciembre. See, for instance, Articles 127.2.c) and 130 of the Regulation of Implementation of the Aliens Act of 2000. Article 53.1 of the Constitution provides: ‘‘Los derechos y libertades reconocidos en el Capı´tulo segundo del presente Tı´tulo vinculan a todos los poderes pu´blicos. So´lo por ley, que en todo caso debera´ respetar su contenido esencial, podra´ regularse el ejercicio

436.

437. 438.

439.

440.

441. 442.

443. 444.

445.

446. 447. 448. 449.

de tales derechos y libertades, que se tutelara´n de acuerdo con lo previsto en el artı´culo 161, 1, a).’’ The reaction of the government to this decision should be noted. Instead of reforming the Regulation, as it could have been expected as the direct consequence of the decision, the government immediately announced the reform of the Act, in order to save the provisions of the Regulation censured by the Court. A reform of the Act was adopted in November 2003 (Ley Orga´nica 14/2003 de 20 de noviembre, de reforma de la Ley Orga´nica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en Espa~ na y su integracio´n social, modificada por Ley Orga´nica 8/2000, de 22 de diciembre; de la Ley 7/1985, de 2 de abril, Reguladora de las Bases del Re´gimen Local; de la Ley 30/1992 de 26 de Noviembre, de Re´gimen Jurı´dico de las Administraciones Pu´blicas y de la Ley 3/1991, de 10 de enero, de Competencia Desleal). See above, on precarious rights. Article 21 of the Constitution: ‘‘(1) Se reconoce el derecho de reunio´n pacı´fica y sin armas. El ejercicio de este derecho no necesitara´ de autorizacio´n previa; (2) En los casos de reuniones en lugares de tra´nsito pu´blico y manifestaciones se dara´ comunicacio´n previa a la autoridad, que so´lo podra´ prohibirlas cuando existan razones fundadas de alteracio´n del orden pu´blico, con peligro para personas o bienes.’’ Article 22 of the Constitution reads in relevant part: ‘‘(1) Se reconoce el derecho de asociacio´n’’; ‘‘(4) Las asociaciones so´lo podra´n ser disueltas o suspendidas en sus actividades en virtud de resolucio´n judicial motivada.’’ See, however, the dissenting opinion of some members of the Tribunal Constitucional, considering constitutional the legal definition of the rights to assembly and association. See on this, note 347 in relation to precarious rights. As reasoned in the note referred, the dissent expressed in that opinion seemed in reality to reveal a disagreement concerning aliens’ ultimate constitutional position. As analysed in the section on precarious rights, the advantage of this special process was the possibility of staying the administrative act. Article 19 of the Constitution: ‘‘Los espa~ noles tienen derecho a elegir libremente su residencia y a circular por el territorio nacional. Asimismo, tienen derecho a entrar y salir libremente de Espa~ na en los te´rminos que la ley establezca. Este derecho no podra´ ser limitado por motivos polı´ticos o ideolo´gicos.’’ STS (Sala de lo Contencioso-Administrativo), Sentencia de 3 de noviembre de 1981, Lynne B. y D. Gordon R. L. (RAJ 1981/4726). Indeed, this decision indicates an important evolution in the reasoning of the Court with respect, for instance, to the decision of 25 July 1980, which has been analysed in relation to precarious rights. Article 96.1 of the Constitution provides: ‘‘Los tratados internacionales va´lidamente celebrados, una vez publicados oficialmente en Espa~ na, formara´n parte del ordenamiento interno. Sus disposiciones so´lo podra´n ser derogadas, modificadas o suspendidas en la forma prevista en los propios tratados o de acuerdo con las normas generales del Derecho internacional.’’ Specifically, the Court referred to Articles 2, 12 and 13 ICCPR and to Article 14 ECHR. See, for instance, STS (Sala de lo Contencioso-Administrativo), Sentencia de 6 de diciembre de 1982 (RAJ 7908). STS (Sala de lo Contencioso-Administrativo), Sentencia de 10 de noviembre de 1986 (RAJ 1986/6646). The administration had merely referred to a police report in order to evidence the exercise of unlawful activities by the alien, the Tribunal Supremo qualifying this as insufficient. For an analysis of this decision, see Aprell Lasagabaster 1987, pointing

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ML 48,1/2 450.

208

451. 452. 453.

454.

out the distinction made by the Court between the theoretical recognition of the right and its practical effectiveness. The Court referred to the administrative procedure in order to confer the permit effectively. See Olivares d’Angelo 1984, on the definition by the courts of progressive limits for the administration in relation to the conferral of entry and permanence permits. The analysis focuses mainly on the 1982 case law. According to this author, it is possible to observe an evolution in the delimitation of the administrative prerogatives. Whereas these were initially defined as purely discretionary powers, they were later established as regulated prerogatives, which implies that the administration is obliged to grant the permit once the necessary requirements are fulfilled. See, for instance, STS (Sala de lo Contencioso-Administrativo), Sentencia de 30 de septiembre de 1982 (RAJ 4911). A similar evolution has also taken place in relation to the entry of aliens, although in the more restricted sphere of exemption of entry visas. See, among others, STS (Sala de lo Contencioso-Administrativo), Sentencia de 22 de febrero de 1991 (RAJ 1991/1504), STS (Sala de lo Contencioso-Administrativo), Sentencia de 30 de mayo de 1991 (RAJ 1991/3905) and STS (Sala de lo Contencioso-Administrativo), Sentencia de 10 de julio de 1993 (RAJ 1993/5500). For an analysis of this latter decision, see Horgue Baena 1995. STS (Sala de lo Contencioso-Administrativo), Sentencia de 16 de noviembre de 1982 (RAJ 6999). For a thorough analysis of the case law in this sphere, see Moya Escudero, Trinidad Garcı´a, and Carrascosa Gonza´lez 1993. STS (Sala de lo Contencioso-Administrativo), Sentencia de 9 de febrero de 1988 (RAJ 1988/1286). See, in this context, Miquel Calatayud 1990b, arguing, on the basis of court decisions such as this one, that a subjective right to permanence exists effectively in the case of aliens. As this author reasons, it is not a constitutional right, but a legal right, although weakened by the strong prerogatives enjoyed by the administration. See also, by the same author, Miquel Calatayud 1991. In relation to the right to work, a further decision of the Tribunal Constitucional shall be mentioned here, since it seems to testify to an evolution with respect to the initial decision 107/1984 (see, earlier, on precarious rights): STC 150/1994 (Sala 2a), Recurso de Amparo, Sentencia de 23 de mayo de 1994, Luisa Mohamed Messaud. Based on a tripartite classification of fundamental rights, the Court had rejected in 1984 the existence of a right of aliens to work, by arguing that this right neither constituted an element inherent in human dignity, nor could its recognition be derived from any legal text in force. In the 1994 decision, the Court seemed to minimise the rigor concerning this second condition, by going so far as to confer validity and effectiveness on an unpublished administrative order, jointly dictated by the Ministries of Labour and of the Interior. This order recognised the identity document that the inhabitants of Ceuta and Melilla possess which is known as ‘‘tarjeta de estadı´stica’’ as having the same force as a working permit. In contrast to the solution reached in the decision 107/1984, the Court held here that the equality of working and social rights between these groups of nationals could indeed be derived from the existence of that order. This decision has been severely criticised for having created uncertainty in relation to the legal hierarchical structure and to the principle of publicity of norms, which is recognised in Article 9.3 of the Constitution (‘‘La Constitucio´n garantiza el principio de legalidad, la jerarquı´a normativa, la publicidad de las normas, la irretroactividad de las disposiciones sancionadoras no favorables o restrictivas de derechos individuales, la seguridad jurı´dica, la responsabilidad y la interdiccio´n de la arbitrariedad de los poderes pu´blicos.’’). Truly, the reasoning of the Tribunal Constitucional signified an affirmation of the prevalence of an administrative and unpublished order over the Aliens Act, which expressly required the possession of a working permit in order to

455. 456.

457. 458. 459. 460. 461. 462.

463. 464. 465. 466. 467.

468.

469. 470.

work. Moreover, it represented a subordination of the control of the administrative action by the judiciary to norms which had not been officially published (Article 106.1 of the Constitution provides: ‘‘Los tribunales controlan la potestad reglamentaria y la legalidad de la actuacio´n administrativa, ası´ como el sometimiento de e´sta a los fines que la justifican.’’). See, critical, Freixes Sanjua´n 1997, pp. 186-187. STS (Sala de lo Contencioso-Administrativo), Sentencia de 7 de julio de 2003 (RAJ 2003/4791). The administration had refused to issue the permit on the grounds that the applicant had based his request on an ‘‘impracticable offer of employment since it was for agricultural work already started and, moreover, nearing completion’’. According to the Court, this reason was devoid of substance, given that the applicant had requested the permit in December 1994 to respond to an offer for picking oranges, which had to be terminated between March and June 1995. The Court further relied on the idea of the ‘‘effective damages’’ caused by the unjust denial of the permit. STC 94/1993 (Sala 1a), Recurso de Amparo, Sentencia de 22 de marzo de 1993, Evangelina L. Venzo´n. See, earlier, in the STC 107/1984. STC 116/1993 (Sala 1a), Recurso de Amparo, Sentencia de 29 de marzo de 1993. STS (Sala de lo Contencioso-Administrativo), Sentencia de 11 de abril de 1995 (RAJ 1995/3172). See, on this, Borrajo Iniesta 1998, reconstructing the judicial process of recognition to aliens of freedom of movement. This notwithstanding, the most recent case law reveals a further expansion of the control exercised by the courts, parallel, ultimately, to the consolidation of the reality of immigration in Spain. In this sense, questions that had hitherto remained practically unexplored by the Spanish courts now seem to be slowly introduced into their sphere of action. See, for instance, in this sense, a recent decision of the Tribunal Supremo, concerning the exemption of the visa requirement in the case of aliens married to nationals: STS (Sala de lo Contencioso-Administrativo), Sentencia de 2 de octubre de 2003. In this, the Court declared unconstitutional an administrative order issued in April 1996 by the Ministry of the Interior, and according to which the exemption could only be granted after three years of marriage. As the Supreme Court stated, the order, which had been actually superseded by the Regulation of 2001 of implementation of the Aliens Act, violated the constitutional principle of family protection, enshrined in Article 39 of the Constitution, as well as the obligation to live together imposed on the partners by Articles 67 and 68 of the Civil Code. See chapter 6. 35 BVerfGE 382, Beschluss des Ersten Senats vom 18. Juli 1973. BVerwGE, Beschluss vom 27. Februar 1962 -I C 114.59. 42 BVerwGE 133, Urteil des Ersten Senats vom 3. Mai 1973 -I C 33.72 (OVG Berlin). See, for instance, De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France). For a more in depth analysis of the situation resulting from this jurisdictional structure and its eventual impact on the construction of the status of aliens, see later in chapter 6. 35 BVerfGE 382, Beschluss des Ersten Senats vom 18. Juli 1973. De´cision n 89-261 DC du 28 juillet 1989 (loi relative aux conditions de se´jour et d’entre´e des e´trangers en France). See also, on this question, De´cision n 86-216 DC du

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209

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471. 472. 473.

210 474. 475. 476. 477. 478.

479. 480.

481.

482. 483. 484. 485. 486.

487.

488.

489.

3 septembre 1986 (loi relative aux conditions d’entre´e et de se´jour des e´trangers en France). STC 115/1987 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 7 de julio de 1987. See, for instance, BVerfGE, Beschluss vom 22. August 1983 – 2 BvR 1193/83. See, for instance, 50 BVerfGE 166, Beschluss des Ersten Senats vom 17. Januar 1979, BVerfGE, Beschluss vom 13. Juni 1983 – 2 BvR 779/83, BVerwGE, Urteil vom 2. Februar 1979 – 1 B 238.78 (VGH Mannheim), or 60 BVerwGE 75, Urteil des Ersten Senats vom 26. Februar 1980 – 1 C 90/76 (Mannheim). See, for instance, BVerwGE, Urteil vom 27. September 1978 -1 C 28.77 (VGH Kassel). CE, Ass., arreˆt 13 mai 1977, Perregaux. This obligation, however, is no longer in force. CE, Ass., arreˆt 8 de´cembre 1978, El Kaamouchi. CE, arreˆt 23 de´cembre de 1987, Tahraoui. See, for instance, ATS (Sala de lo Contencioso-Administrativo), Auto de 24 de octubre de 1990 (RAJ 1990/7.788), ATS (Sala de lo Contencioso-Administrativo), Auto de 11 de octubre de 1990 (RAJ 1990/7.613), ATS (Sala de lo Contencioso-Administrativo), Auto de 31 de diciembre de 1990 (RAJ 1990/10.246) or ATS (Sala de lo ContenciosoAdministrativo), Auto de 6 de junio de 1991 (RAJ 1991/4.940). STC 13/2001 (Sala 2a), Recurso de Amparo, Sentencia de 29 de enero de 2001. See, for instance, decision 93-325 of the Conseil Constitutionnel (De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France)), paragraph 16. Concerning the regular identity controls performed by the police on aliens, the Conseil affirmed the constitutionality of such controls, declaring however that they could only be performed according to objective criteria which exclude any form of discrimination. See, for instance, the De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France), in which the Conseil affirmed that the expulsion can only be ordered in cases of a ‘‘serious’’ threat to public order. CE, Ass., arreˆt de 23 juillet de 1974, Ferrandiz Gil Ortega. STC 115/1987 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 7 de julio de 1987. 35 BVerfGE 382, Beschluss des Ersten Senats vom 18. Juli 1973. 19 BVerfGE 394, Beschluss des Ersten Senats vom 1. Ma¨rz 1966. This was initiated in two decisions of the same date: CE, Ass., arreˆt 29 juin 1990, Pre´fet du Doubs c/Mme. Olmos Quintero and CE, Ass., arreˆt 29 juin 1990, Imambaccus. See, for instance, De´cision n 79-109 DC du 9 janvier 1980 (loi relative a` la pre´vention de l’immigration clandestine et portant modification de l’Ordonnance n 45-2658 du 2 novembre 1945), De´cision n 86-216 DC du 3 septembre 1986 (loi relative aux conditions d’entre´e et de se´jour des e´trangers en France) and De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France). See, for instance, STC 12/1994 (Sala 1a), Recurso de Amparo, Sentencia de 17 de enero de 1994 or STC 96/1995 (Sala 2a), Recurso de Amparo, Sentencia de 19 de junio de 1995. STC 115/1987 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 7 de julio de 1987.

490. See, for instance STS (Sala de lo Contencioso-Administrativo), Sentencia de 3 de noviembre de 1981, Lynne B. y D. Gordon R. L. (RAJ 1981/4726) or STS (Sala de lo Contencioso-Administrativo), Sentencia de 10 de noviembre de 1986 (RAJ 1986/6646). 491. STC 94/1993 (Sala 1a), Recurso de Amparo, Sentencia de 22 de marzo de 1993, Evangelina L. Venzo´n. 492. STS (Sala de lo Contencioso-Administrativo), Sentencia de 11 de abril de 1995 (RAJ 1995/3172). 493. 49 BVerfGE 168, Beschluss des Ersten Senats vom 26. September 1978 -1 BvR 525/77. 494. De´cision n 97-389 DC du 22 avril 1997 (loi portant diverses dispositions relatives a` l’immigration). 495. 76 BVerfGE 1, Beschluss des Zweiten Senats vom 12. Mai 1987, -2 BvR 1226/83, 101, 313/84. 496. CE, Ass., arreˆt 8 de´cembre 1978, GISTI, CFDT et CGT. 497. For a study of this question see Guiraudon 2000 and Guiraudon and Lavah 2000, arguing that the possibilities of real impact of supranational instances on national law are very limited. According to this author, the type of protection granted by the ECtHR is only possible if the states have previously agreed to accept it. 498. Article 14 ECHR: ‘‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’’ 499. Article 16 ECHR: ‘‘Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.’’ 500. Article 2 of Protocol No. 4 ECHR: ‘‘(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence; (2) Everyone shall be free to leave any country, including his own; (3) No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or the public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others; (4) The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.’’ 501. Article 4 of Protocol No. 4 ECHR: ‘‘Collective expulsion of aliens is prohibited.’’ 502. Article 1.2 of Protocol No. 7 ECHR: ‘‘An alien may be expelled before the exercise of his rights under paragraph 1.a, b and c of this article, when such expulsion is necessary in the interests of public order or is grounded in reasons of national security.’’ 503. Article 1 ECHR: ‘‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’’ 504. See below, in the section on emergent rights. 505. Abdulaziz, Cabales and Balkandali v. the United Kingdom, App. nos. 9214/80; 9473/81; 9474/81, Judgment of 28 May 1985, Series A No. 94, paragraph 67. 506. Chahal v. the United Kingdom, App. no. 22414/93, Judgment of 15 November 1996, Reports 1996-V, paragraph 73. 507. D. v. the United Kingdom, App. no. 30240/96, Judgment of 2 May 1997, Reports 1997III, Paragraph 46.

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508. El Boujaı¨di v. France, App. no. 25613/94, Judgment of 26 September 1997, Reports 1997-VI, paragraph 39. 509. See, for instance, Guild 1998 criticising the fact that the process initiated with the proclamation, in 1957, of the freedom of movement of workers was interrupted at the point where third-country nationals could be included within this freedom. 510. The analysis of the process of communitarisation of the sphere of immigration falls beyond the aim of this chapter, which simply tries to examine the likely impact of the ECJ in influencing the reasoning of the national courts as regards aliens. This chapter will merely define the competence basis on which the ECJ intervenes in this field, as well as the main principles regarding third-country nationals which have been established under its jurisdiction. For an analysis of the process of progressive incorporation of third-country nationals into EC law, see, among others, Hoogenboom 1992, Tomuschat 1995, Chiti 1995, Rodier 1997, Favell 1998, Coussirat-Couste`re 1998, Koslowski 1998, Peers 1998a, Guild 1998, Cre´peau and Carlier 1999, Vila´ Costa 1999, Hailbronner 1999b, Cholewinski 2000, Bruycker 2003, Schmitter, Julien-Laferrie`re, and Carlier 2003, Labayle, Bouteillet-Pacquet, and Weyembergh 2003, Handoll 2003. For a systematic and thorough overview of the Community policy on immigration, see, for instance, Berger 2000, Guild 2000, Hailbronner 2000b, Guild and Harlow 2001. 511. With the entry into force of the Amsterdam Treaty, the subject matter of the new Title IV automatically fell under the jurisdiction of the ECJ. According to its provisions, the measures of the Common Asylum and Immigration Policy aim at progressively establishing an area of freedom, security and justice. However, the role of the Court was also modified. According to Article 68.1, not every national court can request preliminary rulings; only the courts against whose decisions there is no judicial remedy under national law can do so. These highest courts are, however, required to submit preliminary questions if a ruling of the ECJ is necessary to enable the national court to give judgment. Member States tried to justify this modification of the Court’s jurisdiction by arguing that the implementation of the normal system in the sphere of asylum and immigration would give rise to prolonged procedures. For the same purpose, a special advisory procedure was introduced for the new Title in Article 68.3, allowing for Member States to bring questions of interpretation of the new Title or of Acts based on the new Title to the Court before they arise in the legal proceedings of national courts. According to Article 68.2, the ECJ shall not have jurisdiction to rule on any measure adopted in order to preserve public order and internal security. See, critical, Hailbronner 1999b, p. 19, Peers 1998b and 1999. The rules governing the jurisdiction of the ECJ were not altered by the Treaty of Nice. However, the European Charter of Fundamental Rights, which was approved with the Treaty of Nice in December 2000, seemed to open up new possibilities of intervention for the ECJ, although this text is still not formally binding. In combination with Article 6 of the EU Treaty, which establishes that the EU is bound by the rights recognised in the ECHR and by the constitutional traditions of the Member States, the transversal clause foreseen in Article 53 of the Charter seems to give rise to an interrelation between the national systems of protection of rights, the Council of Europe and the EU: Article 53 of the Charter prohibits the implementation of the Charter in order to diminish the level of protection consolidated by the ECHR, the European Social Charter, the 1966 UN Covenants or other international instruments ratified by the EU, by the Community or by the Member States. This could in effect give place to fundamental innovations by obliging Member States to implement the standard that grants a higher level of protection. From this perspective, the case law of the ECtHR and the ECJ are highly relevant. For a thorough analysis of the implications of this new mechanism, see Peers 2001, Freixes Sanjua´n 2002 and Freixes Sanjua´n and Remotti Carbonell 2002. However, even before the Charter has become legally binding, this mechanism might have been neutralised: the European Constitution seems to

512.

513. 514.

515.

516. 517. 518. 519. 520. 521. 522. 523.

524. 525. 526.

suppress the transversal clause introduced by the Charter. Although the higher of the competing standards of protection should be applied (Article 53 of the Charter, currently II-113 of the Constitutional Treaty), in matters outside the scope of EU law, the Charter has no legal impact. It is only where the scope of EU law (this being also the scope of the Charter; see Article 51 of the Charter, II-111 of the Constitutional Treaty) and national law overlap that some type of ‘‘competition’’ between protection standards may arise. Joined Cases C-281/85, C-283/85, C-284/85, C-285/85 and C-287/85 Federal Republic of Germany, French Republic, Kingdom of The Netherlands, Kingdom of Denmark, United Kingdom of Great Britain and Northern Ireland v. Commission [1987] ECR I-3203. For an analysis of the ruling, see, among others, Decaux 1987 and Desolre 1990. In effect, after this ruling, the Commission stepped back and did not introduce any new proposals, rather leaving the field for Member States. However, the ECJ only annulled the consultation procedure in relation to some aspects of third-country nationals (specifically, cultural matters) as beyond the scope of the Commission’s powers. The ECJ did recognise in this decision a potential competence of the Commission by admitting that migration policy was capable of falling under its sphere of intervention as regards impact on the employment market and working conditions. See Guild 1998, p. 620 and Cre´peau and Carlier 1999, p. 961. Article 8 ECHR: ‘‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence; (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’’ Bouchelkia v. France, App. no. 23078/93, Judgment of 29 January of 1997, Reports 1997-I. El Boujaı¨di v. France, App. no. 25613/94, Judgment of 26 September 1997, Reports 1997-VI. Boujlifa v. France, App. no. 25404/94, Judgment of 21 October 1997, Reports 1997-VI. Dalia v. France, App. no. 26102/95, Judgment of 19 February 1998, Reports 1998-I. Gu¨l v. Switzerland, App. no. 23218/94, Judgment of 19 February 1996, Reports 1996VI. Ahmut v. The Netherlands, App. no. 21702/93 Judgment of 28 November 1996, Reports 1996-VI. Paragraph 49. See, however, the dissenting opinions in these decisions, claiming the need for a general legal response to the specific situation of second-generation immigrants. See, in particular, the opinion of Judge Morenilla in the case of Boujlifa, arguing as well that the measure of deportation is in those cases unfair even for the country of origin, since this country is forced to assume responsibility for the conduct of a person who has never actually lived in its territory. See, in particular, the dissenting opinions of Judge Lohmus and Judge Morenilla. See, on this question, Van Dijk 2001. See, for instance, Case C-36/75 Roland Rutili v. Ministre de l’Inte´rieur [1975] ECR I1219, concerning the case of an Italian national married to a French woman, who had been residing legally in France, and against whom various deportation and restriction

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527. 528. 529. 530. 531. 532.

533.

534. 535. 536.

537.

538. 539. 540.

orders were made. In that decision, the Court affirmed that although the states are ‘‘in principle free to determine the requirement of public policy in the light of their national needs’’, this would be subject to Community control. Case C-12/86 Meryem Demirel v. Stadt Schwa¨bisch Gmu¨nd [1987] ECR I-3719. Paragraph 9. Paragraph 23. Weiler 1992. Ibid., p. 82. Moreover, according to Weiler, the ECJ had already suggested, in an obiter dictum in the Rutili judgment (paragraph 32), ‘‘in language virtually identical to that in the human rights cases, that the explicit rules of Community law limiting the power of the Member States to control aliens (by devices such as public policy) were a specific manifestation of the more general principle, enshrined in Articles 8, 9, 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.’’ Without trying to argue that this reasoning set in relation to an EEC national (Mr Rutili being Italian) could be directly implemented in the Demirel case, this author nevertheless sustained that the ECJ had jurisdiction over the matter (Ibid., p. 81 and 82). For an analysis of how the ECtHR has approached the concept of public order in the sphere of aliens, see Harvey 2001, who argues the need for overcoming the traditional casuistic approach and setting thus clear standards. See below in emergent rights, section II. See, especially, paragraph 78 of the decision. The subsequent case law of the Court is a further confirmation of this reasoning, bringing up new arguments which allegedly legitimise the execution of expulsions. For instance, according to the Court, the right of the states to define its own criminal policy, signifies the possibility to expel aliens that have committed criminal offences, as in the specific case of traffic of drugs. See, for instance, D. v. the United Kingdom, App. no. 30240/96, Judgment of 2 May 1997, Reports 1997-III, Dalia v. France, App. no. 26102/95, Judgment of 19 February 1998, Reports 1998-I, El Boujaı¨di v. France, App. no. 25613/94, Judgment of 26 September 1997, Reports 1997-VI, Mehemi v. France, App. 25017/94, Judgment of 26 September 1997, Reports 1997-VI, or H.L.R. v. France, App. no. 24573/94, Judgment of 29 April 1997, Reports 1997-III. This was also the argument in cases related to the commission of other criminal offences such as aggravated theft or rape: Moustaquim v. Belgium, App. no. 12313/86, Judgment of 18 February 1991, Series A No. 193, Beldjoudi v. France, App. no. 12083/86, Judgment of 26 February 1992, Series A No. 234-A, Bouchelkia v. France, App. no. 23078/93, Judgment of 29 January of 1997, Reports 1997-I, Boujlifa v. France, App. no. 25404/94, Judgment of 21 October 1997, Reports 1997-VI, or Nasri v. France, App. no. 19465/92, Judgment of 13 July 1995, Series A No. 320-B. According to the Court, the preservation of the social and public order justifies the interference with the right of the alien to family and private life. See, especially, paragraph 76. However, as this case illustrates, the ECtHR has been prepared to finally find against the state even when national security is raised as a defence. Soering v. the United Kingdom, App. no. 14038/88, Judgment of 7 July 1989, Series A No. 161. See, especially, paragraph 86. Article 6 ECHR: ‘‘(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

541. 542.

543. 544. 545.

546. 547. 548. 549.

Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law; (3) Everyone charged with a criminal offence has the following minimum rights: a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b) to have adequate time and facilities for the preparation of his defence; c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.’’ Article 7 ECHR: ‘‘(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed; (2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.’’ Maaouia v. France, App. no. 39652/98, Judgment of 5 October 2000, Reports 2001-IX. In fact, the text of the Convention already foresees this possibility. Article 5 reads in relevant part: ‘‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’’: ( . . . ) ‘‘the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.’’ Scott v. Spain, App. no. 21335/93, Judgment of 18 December 1996, Reports 1996-VI. Van der Tang v. Spain, App. no. 19382/92, Judgment of 13 July 1997, Series A No. 321. Joined Cases C-35/82 and C-36/82 Elestina Esselina Christina Morson v. State of The Netherlands and Head of the Plaatselijke Politie within the meaning of the Vreemdelingenwet; Sweradjie Jhanjan v. State of The Netherlands [1982] ECR I-3723. Joined Cases C-64/96 and C-65/96 Land Nordrhein-Westfalen v. Kari Uecker and Vera Jacquet v. Land Nordrhein-Westfalen ECR [1997] ECR I-3171. See paragraph 23. Case C-267/83 Aissatou Diatta v. Land Berlin [1985] ECR I-567. Article 10 of the Regulation: ‘‘(1) The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State: (a) his spouse and their descendants who are under the age of 21 years or are dependants; (b) dependent relatives in the ascending line of the worker and his spouse. (2) Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes. (3) For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however must not give rise to discrimination between national workers and workers from the other Member States.’’

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550. Article 11 of the Regulation: ‘‘Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals of any Member State.’’ 551. See Paragraph 20. 552. See Paragraph 21. 553. Moreover, according to this criterion, once the link to Community law no longer exists, the jurisdiction of the Court also ceases. In the view of Joseph H. H. Weiler, the reasoning of the Court can be criticised from two theoretical standpoints. First, the fact that the loss of the Community protection can lead to a violation of human rights should confer an unconditional right to the Court’s supervision. In the opinion of this scholar, the ECJ limited its scrutiny to verify what the will of the Community legislator was, abstaining thus from censuring this will although the Court admitted that it could give place to a violation of human rights. Second, according to Weiler, the orientation of Community law towards the realisation of its economic aims should have sufficed to oppose the subordination of the Community rights to the subsistence of the marriage, since this situation of dependence can act as a deterrence on the free movement of persons of the Treaty. In any case, in the opinion of this author, a distinction should be drawn between the sphere of the derivative rights that Ms Diatta would lose at the moment of her divorce and the fundamental rights to which as individual is in any case entitled – that is, the judicial control of the ECJ to impede any eventual violation of human rights by the loss of the Community rights. See Weiler 1992, pp. 85-91. 554. See section II.2 on precarious rights. 555. Artico v. Italy, App. no. 6694/74, Judgment of 13 May 1980, Series A No. 37. See, especially, paragraphs 33 and 35. 556. Pakelli v. Federal Republic of Germany, App. no. 8398/78, Judgment of 25 April 1983, Series A No. 64. 557. See, especially, paragraphs 35 to 40. 558. Sramek v. Austria, App. no. 8790/79, Judgment of 22 October 1984, Series A No. 84. 559. See paragraph 42. 560. Luedicke, Belkacem and Koc¸ v. Federal Republic of Germany, App. no. 6210/78, Judgment of 28 November 1978, Series A No. 29. 561. See, especially, paragraphs 45 to 48 and 53. 562. Erkalo v. The Netherlands, App. no. 23807/94, Judgment of 2 September 1998, Reports 1998-VI. 563. See, especially, paragraphs 55 to 60. The applicant, an Ethiopian national, convicted of two counts of manslaughter, had been sentenced to imprisonment with committal to a psychiatric institution. However, during the procedure concerning the extension of the placement order, no judicial control had been effected on his detention for over two months. 564. Bozano v. France, App. no. 9990/82, Judgment of 18 December 1986, Series A No. 124F. 565. See, especially, paragraph 60. The applicant was an Italian national sentenced in absentia in Italy to life imprisonment and arrested later in France. The Court of Appeal of Limoges rejected the application of extradition presented by the Italian

566. 567. 568. 569. 570. 571.

572.

573. 574. 575. 576. 577. 578. 579. 580. 581.

582. 583. 584. 585. 586. 587. 588. 589. 590.

authorities on the grounds that the Italian procedure for trial in absentia was incompatible with French public policy (ordre public). Amuur v. France, App. no. 19776/92, Judgment of 25 June 1996, Reports 1996-III. Scott v. Spain, App. no. 21335/93, Judgment of 18 December 1996, Reports 1996-VI. Van der Tang v. Spain, App. no. 19382/92, Judgment of 13 July 1997, Series A No. 321. See, especially, paragraphs 76 to 79. Soumare v. France, App. no. 23824/94, Judgment of 24 August 1998, Reports 1998-V. Article 13 of the Convention recognises a general right to effective remedies before national authorities in the case of violation of any of the rights of the Convention. However, on that occasion, the Court refused to consider the possible violation of Article 13, on the grounds that Article 5.4 already confers protection which, with respect to Article 13, represents a lex specialis. Article 13 of the Convention, provides: ‘‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’’ See, for instance, the Association Agreement with Turkey, the Lome´ Convention with countries in Africa, the Caribbean and Pacific, and the Cooperation Agreements concluded, inter alia, with Algeria, Morocco, Tunisia and Yugoslavia. Case C-12/86 Meryem Demirel v. Stadt Schwa¨bisch Gmu¨nd [1987] ECR I-3719. See, also in this sense, Case C-162/96 A. Racke GmbH & Co. v. Hauptzollamt Mainz [1998] ECR I-3655. See above, in precarious rights, section II. Case C-192/89 S. Z. Sevince v. Staatssecretaris van Justitie [1990] ECR I-3461. See, in this sense, Alexander 1992, p. 64, on the reasoning of the Court in Demirel. See, especially, paragraphs 22 to 26. See paragraph 29. Case C-188/00 Bu¨lent Kurz, ne´ Yu¨ce, v. Land Baden-Wu¨rttemberg [2002] ECR I-10691. Case C-235/99 The Queen v. Secretary of State for the Home Department, ex parte Eleonora Ivanova Kondova [2001] ECR I-6427, Case C-63/99 The Queen v. Secretary of State for the Home Department, ex parte Wieslaw Gloszczuk and Elzbieta Gloszczuk [2001] ECR I-6369, and Case C-257/99 The Queen v. Secretary of State for the Home Department, ex parte Julius Barkoci and Marcel Malik [2001] ECR I-6557. See paragraphs 90 and 85, respectively. Abdulaziz, Cabales and Balkandali v. the United Kingdom, App. nos. 9214/80; 9473/81; 9474/81, Judgment of 28 May 1985, Series A No. 94. See paragraph 61. See, especially, paragraphs 78 to 83. Berrehab v. The Netherlands, App. no. 10730/84, Judgment of 21 June 1988, Series A No. 138. See paragraph 21. See paragraph 27. Moustaquim v. Belgium, App. no. 12313/86, Judgment of 18 February 1991, Series A No. 193. Article 3 ECHR: ‘‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’’

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591. Soering v. the United Kingdom, App. no. 14038/88, Judgment of 7 July 1989, Series A No. 161. 592. See paragraph 82. 593. See paragraph 111. 594. See also decisions such as Cruz Varas (Cruz Varas and others v. Sweden, App. no. 15576/89, Judgment of 20 March 1991, Series A No. 201). However, on that occasion, the Court finally considered that the existence of a risk for the right recognised in Article 3 had not been sufficiently demonstrated. 595. Chahal v. the United Kingdom, App. no. 22414/93, Judgment of 15 November 1996, Reports 1996-V. See, especially, paragraph 79. 596. H.L.R. v. France, App. no. 24573/94, Judgment of 29 April 1997, Reports 1997-III. 597. See Laws 1995, questioning the reasoning followed by the ECtHR in Soering and warning of its far-reaching implications. This author draws attention to the difficulties inherent in the idea that the Convention may protect individuals against infringements of the Convention that will only take place in a non-contracting state, arguing moreover that this reasoning could also be then applied to the rest of rights recognised in the Convention. 598. In this sense, it could also be argued that the conferral of rights on third-country nationals is indirect not so much because it implies the expansion of the holders of rights, as because it represents granting protection to individuals who in reality are only regarded as instruments of the real holder of the rights – EC nationals or, even, the EC itself. De facto, they are enabled to enjoy protection deriving from the right, but their position is conditioned by the economic aim – the creation of the internal market – which has made this protection possible. 599. See above, in precarious rights, section II. 600. Joined Cases C-297/88 and C-197/89 Massam Dzodzi v. Belgian State [1990] ECR I-3763. 601. Case C-267/83 Aissatou Diatta v. Land Berlin [1985] ECR I-567. 602. See above, in precarious rights, section III. 603. See, especially, paragraphs 16 to 20. 604. Case C-113/89 Rush Portuguesa Lda v. Office Nationale d’Immigration [1990] ECR I-1417. 605. See paragraph 12. 606. Case C-43/93 Raymond Vander Elst v. Office des Migrations Internationales [1994] ECR I-3803. However, as in Rush Portuguesa, the Court declared it permissible for the host Member State to apply its own labour legislation to these workers. In this decision, concerning the case of Moroccan workers, the Court moreover reminded of the protected status that these nationals have under Community law. In effect, after the conclusion of the Cooperation Agreement between the EC and the Kingdom of Morocco, these nationals have been fundamentally granted social rights in the same conditions as nationals of Member States in which they are employed. See Case C-18/ 90 Office National de l’Emploi v. Bahia Kziber [1991] ECR I-199and Case C-126/95 A. Hallouzi-Choho v. Bestuur van de Sociale Verzekeringsbank [1996] ECR I-4807. 607. Beldjoudi v. France, App. no. 12083/86, Judgment of 26 February 1992, Series A No. 234-A. 608. See above, in emergent rights, section II. 609. Nasri v. France, App. no. 19465/92, Judgment of 13 July 1995, Series A No. 320-B. 610. See, especially, paragraphs 43 to 46.

611. See the criticisms raised in the dissenting opinions in Nasri. See, in particular, the opinion of Judge Pettiti, urging the adoption of general structures to face new realities such as the one concerning second-generation immigrants. As the Judge reasoned, though, this is something that needs to be done by the competent authorities in each state, the ECtHR not being competent for such a task. 612. The Beldjoudi judgment was interpreted by a large segment of the legal scholarship as inaugurating a case law that would afford the states only a narrow margin of appreciation when seeking to expel aliens who had essentially spent their whole lives in the country of residence. See for instance, Cholewinski 1994 and, although critical with the Court’s underlying reasoning, Labayle 1993. 613. See, Labayle 1997, especially, pp. 992-993, criticising this change of trend in the case law of the Court and warning of the legal uncertainty that it creates. 614. See, for instance, the cases of Bouchelkia, Boujlifa, El Boujaı¨di, or Dalia (see above, in precarious rights, section II), representing all of them judgments where the Court ruled that despite the strong family links of the aliens in the host country, the importance of the crimes committed justified the expulsion. See, however, a more recent decision in which the Court unanimously declared violated Article 8 in the case of an expulsion issued against an Algerian national from Switzerland, despite the seriousness of the offences committed (unlawful possession of weapons and robbery and damage to property) and the fact that his only link with the host country was his marriage to a Swiss national. In effect, the applicant was not a secondgeneration immigrant, this being the first time in which the Court has found a violation of the right to family life in such circumstances. Boultif v. Switzerland, App. no. 54273/00, Judgment of 2 August 2001, Reports 2001-IX. 615. D. v. the United Kingdom, App. no. 30240/96, Judgment of 2 May 1997, Reports 1997III. 616. See, however, Nsona v. The Netherlands, App. no. 23366/94, Judgment of 28 November 1996, Reports 1996-V, where the Court had already set the basis for this reasoning. 617. For an analysis of this decision, see, Hailbronner 1999a, very critical with the reasoning of the Court, both from a legal and a practical perspective. In brief, this author argues that the definition by the Court of the right not to suffer inhuman or degrading treatment represents an illegitimate and direct substitution of the right of asylum which the ECHR, in accordance with the clear wishes of its drafters, does not recognise. 618. See, especially, paragraph 49. 619. According to Delmas-Marty, the ultimate structure emerging from the case law of the ECtHR could be characterised as a mixture of fragility and audacity, permanently threatened by the resistance of the states, and seeking to find a balance between the common denominator of national laws and its own autonomous interpretation (Delmas-Marty 1992a). In the view of this author, the final richness of the legal reasoning of the Court has been ultimately stimulated by the extreme diversity of its provisions, a trait which although sometimes defined as a weakness, it has shown to be, in practice, well-suited to the relationship between Europe and the individual states that are part of it (Delmas-Marty 1992b, especially, p. 319). 620. See Ost 1992, for an analysis of the principles of interpretation developed by the Court. See, especially p. 309. 621. See Massias 1992, for a comparative analysis between the ECJ and the ECtHR in the sphere of aliens, focusing specifically on the techniques of interpretation developed by these courts. 622. It remains in effect to be seen whether the Member States will be finally willing to allow this happening. For an evaluation of the specific steps that the Member States

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220 623. 624.

625. 626. 627.

628. 629. 630.

631. 632.

633.

have accepted to take in this respect, see, for instance, Peers 2001, analysing the potential impact of the Charter of Fundamental Rights on the status of third-country nationals. Essentially, the author regretted that more direct ways of protection were left out of the Nice Treaty such as accession of the European Community to the ECHR and the early extension of the ‘normal’ rules governing the Court of Justice to Title IV of the EC Treaty. The European Constitution, which has been signed by the Member States in October 2004, does represent, however, a different step in this respect, by foresseing the accession to the Convention (see Article I-9 of the Constitutional Treaty, as well as Protocol No. 14 ECHR, still not in force). Case C-370/1990 CJ the Queen v. Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department [1992] ECR I-4265. In this respect, this decision represents an evolution with regard to judgments such as Uecker and Jacquet, where the Court had declared that it was up to the Member States to avoid the discrimination that can be indirectly derived from the enforcement of Community law. See above, in precarious rights, section III. Case C-109/01 Secretary of State for the Home Separtment v. Hacene Akrich [2003] ECR I-9607. Case C-459/99 Mouvement contre le racisme, l’antise´mitisme et la xe´nophobie ASBL (MRAX) v. E´tat Belge [2002] ECR I-6591. The ruling does not apply if the third-country national is a family member of a citizen of the host country, in this case, Belgium. As a result, a third-country national is in a better position being a family member of a foreigner who is an EU national than of a citizen of the host Member State. Case C-66/00 Mary Carpenter v. Secretary of State for the Home Department [2000] ECR I-6279. Joined Cases C-413/99 Baumbast and R v. Secretary of State for the Home Department [2002] ECR I-7091. Article 12 of the Regulation: ‘‘The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.’’ See paragraph 64. See, for instance, 35 BVerfGE 382, Beschluss des Ersten Senats vom 18. Juli 1973, where the Federal Constitutional Court, taking this argument further, held that the legislator is thus entitled to regulate the entry and permanence of aliens according to its own criteria. See also STC 94/1993 (Sala 1a), Recurso de Amparo, Sentencia de 22 de marzo de 1993, Evangelina L. Venzo´n. Its only mechanism of intervention is actually the recours (pre´alable) d’inconstitutionnalite´, through which the Conseil controls the conformity to the Constitution of a bill discussed before the parliament. The possibilities of intervention of the Conseil have however progressively expanded. A fundamental step in this respect was the reform of 1974, which broadened the sphere of the actors entitled to launch this referral. Since the reform, besides the originally designated actors (the two heads of the executive and of the legislative power), the Conseil can be petitioned by sixty deputies or sixty senators, which actually confers new attributions on the Conseil. Indeed, in a country such as France, where the primacy of the law was consecrated as the direct expression of the sovereign will of the nation and the main pillar of the legal and political system, the introduction of the Conseil Constitutionnel, as a control over the parliament, gave rise to criticism, its legitimacy being only

634. 635. 636. 637.

638. 639. 640. 641.

admitted gradually. The Conseil was not conceived for the protection of fundamental rights, but to preserve the balance of powers, redefined in 1958, between the executive and the parliament. Likewise, no catalogue of rights was established in 1958, due to the same difficulties met in 1946 in order to decide which specific rights to include. The solution was the same as in 1946: the reference to an historical text, the Declaration of 1789, which represented the civil rights dimension, complemented by the social protection of the 1946 Preamble. In any case, this indirect recognition of rights was not intended to represent a binding catalogue for the political powers but, simply, a guiding and declarative list of rights. The material incorporation of a catalogue of rights into the Constitution has been only possible through the Conseil Constitutionnel‘s case law. In its fundamental decision of 16 July 1971, the Conseil extended its control over the conformity of the law to the Preamble of the 1958 Constitution, thus recognising the character of positive law of the Preamble, and indirectly incorporating the 1789 Declaration of human rights, the Preamble of the 1946 Constitution and the category of ‘‘fundamental principles recognised by the laws of the Republic’’ in the so-called ‘‘bloc de constitutionnalite´’’, which represents the criteria from which to judge the constitutionality of the bills discussed. Nevertheless, the role of the Conseil Constitutionnel remains limited with respect to its other European counterparts, such as the German Bundesverfassungsgericht or the Spanish Tribunal Constitucional, which exercise a permanent control of the conformity to the Constitution on all the norms in force in the legal system (see below, in note 641). See, for instance, BVerwGE, Beschluss vom 29. August 1972 -I B 51.72 (BayVGH) or 38 BVerwGE 90, Urteil vom 29. April 1971 -I C 7/69 (Mu¨nster). See for instance the De´cret of 29 April 1976. STC 107/1984 (Sala 2a), Recurso de Amparo, Sentencia de 23 de noviembre de 1984, Leyes Rosano. As in Spain, the type of control ultimately exercised by the German Constitutional Court is of mixed nature. The constitutional complaint (Verfassungsbeschwerde) was not conceived as a mechanism of abstract control of constitutionality but to ensure respect for the fundamental rights by the public authorities in the implementation of the law. However, when the individual who lodges the complaint argues that the violation of the right is originated in a provision of the law, the Court proceeds then to the abstract analysis of the act in question. See below, in note 641. 35 BVerfGE 382, Beschluss des Ersten Senats vom 18. Juli 1973. See, in this sense, the decision of the Conseil Constitutionnel of 12 January 1977. De´cision n 89-261 DC du 28 juillet 1989 (loi relative aux conditions de se´jour et d’entre´e des e´trangers en France). The recurso de inconstitucionalidad is a mechanism to control the abstract conformity of the statutes with the Constitution, which is regulated in Articles 161 and 162 of the Spanish Constitution, and in Articles 31-34 of the Ley Orga´nica del Tribunal Constitucional. Unlike the referral foreseen in France, which is only preliminary, it is possible to lodge the recurso de inconstitucionalidad up to three months after the official approval of the act. Actually, a preliminary referral had been also foreseen in Spain but was suppressed in 1985, only some years after its introduction. Preliminary control of constitutionality exists strictly speaking only in France. Some modalities of this type of control do exist in other countries such as Spain or Germany, but are very restricted, being only in relation to the acts of parliament authorising the ratification of international treaties. The choice of only conferring a preliminary control on the Conseil Constitutionnel has long been debated in France, but the position of those who argue that such a system grants legal certainty by impeding the permanent threat to the acts already approved and applied has finally prevailed. However, other arguments explain the adoption in other countries of the alternative model (the

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642. 643. 644. 645. 646.

647. 648.

control a posteriori), such as the need to grant permanently the possibility of invalidating any act that may involve the violation of these rights. In this sense, the control of constitutionality is much wider in Germany and Spain than in France. There exists in Germany an abstract control of constitutionality (abstrakte Normenkontrolle) which, as in Spain, entitles certain political authorities to challenge acts of parliament – federal or of the La¨nder – already in force (see Article 93.I.2 of the Grundgesetz and Articles 76-79 of the Gesetz u¨ber das Bundesverfassungsgericht). Likewise, as opposed to France again, there exists both in Spain and Germany the possibility of indirect challenge of the constitutionality of a statute when the court in charge of implementing an act – which is determinant for the resolution of the case at issue – considers that it may be contrary to the Constitution (see, respectively, Article 163 of the Spanish Constitution and Articles 3537 of the Ley Orga´nica del Tribunal Constitucional, which regulate the denominated cuestio´n de inconstitucionalidad, as well as Article 100 of the Grundgesetz and Articles 80-82 of the Gesetz u¨ber das Bundesverfassungsgericht, which regulate the so-called konkrete Normenkontrolle). In this way, the possibility of constitutional review of the acts of parliament is permanent in these two countries. Furthermore, the determinant element of the permanent character of this review is the mechanism of individual constitutional complaint foreseen in both countries, entitling individuals to challenge before the Constitutional Court the violation of a fundamental right by an act of a public authority. The activity of the Constitutional Court in both Germany and Spain is mainly devoted to the resolution of this last type of referral (the Recurso de Amparo and the Verfassungsbeschwerde, regulated respectively in Article 53.2 of the Spanish Constitution and in Articles 41-58 of the Ley Orga´nica del Tribunal Constitucional, as well as in Article 93.I. 4a and 4b of the Grundgesetz and in Articles 90-95 of the Gesetz u¨ber das Bundesverfassungsgericht). STC 115/1987 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 7 de julio de 1987. 56 BVerwGE 254, Urteil des Ersten Senats vom 27. September 1978 – 1 C 48/77 (Kassel). See above, in the previous section. 50 BVerfGE 166, Beschluss des Ersten Senats vom 17. Januar 1979. BVerwGE, Urteil vom 18. Dezember 1969 -I C 33.69 (Bayerischer VGH). The question posed then before the Court was whether an authorisation to exercise an economic activity could be denied to a Greek national on the grounds of Germany’s economic situation and labour market and in spite of the Agreement signed between Germany and Greece. In the view of the Court, the economic circumstances were part of the notion of public order and could thus justify the administrative decision. In this respect, see also, 48 BVerwGE 299, Urteil des Ersten Senats vom 11. Juni 1975 -I C 8/ 71 (Mu¨nster), in which the Federal Administrative Court declared constitutional the expulsion of a Turkish national married and father of a child (the wife and the child being also Turkish and resident in Germany), by arguing that it respected the principle of proportionality and was thus in conformity with Article 6 BL, Article 8 ECHR, and the International Agreement signed between Germany and Turkey. See, for instance, CE, Ass., arreˆt 13 mai 1977, Perregaux, CE, Ass., arreˆt 8 de´cembre 1978, El Kaamouchi, or CE, arreˆt 23 de´cembre de 1987, Tahraoui. CE, arreˆt 19 juin 1992, M. Adjim. Article 2 of Protocol No. 4 provides: ‘‘(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence; (2) Everyone shall be free to leave any country, including his own; (3) No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or the public

649. 650.

651. 652. 653. 654.

655.

656. 657.

658.

safety, for the maintenance of order public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others; (4) The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.’’ See, for instance, CE, arreˆt 2 de´cembre 1992, Mme Parouty or, even, CE, arreˆt 20 janvier 1988, Elfenzi. See, for instance, ATS (Sala de lo Contencioso-Administrativo), Auto de 24 de octubre de 1990 (RAJ 1990/7.788), ATS (Sala de lo Contencioso-Administrativo), Auto de 11 de octubre de 1990 (RAJ 1990/7.613), ATS (Sala de lo Contencioso-Administrativo), Auto de 31 de diciembre de 1990 (RAJ 1990/10.246), or ATS (Sala de lo ContenciosoAdministrativo), Auto de 6 de junio de 1991 (RAJ 1991/4.940). STC 13/2001 (Sala 2a), Recurso de Amparo, Sentencia de 29 de enero de 2001. CE, Ass., arreˆt de 23 juillet de 1974, Ferrandiz Gil Ortega. STC 115/1987 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 7 de julio de 1987. See, for instance, STS (Sala de lo Contencioso-Administrativo), Sentencia de 3 de julio de 1980, Franz G. D. v. Gobernador Civil de Castello´n (RAJ 1980/3404), or STS (Sala de lo Contencioso-Administrativo), Sentencia de 14 de junio de 1984 (RAJ 1984/4626). Article 96.1 of the Spanish Constitution recognises that international treaties, once validly ratified and officially published, become part of Spanish domestic law. According to this provision, treaties may only be modified, suspended or abolished according to the terms laid down in the treaties themselves or in accordance with customary international law (‘‘Los tratados internacionales va´lidamente celebrados, una vez publicados oficialmente en Espa~ na, formara´n parte del ordenamiento interno. Sus disposiciones so´lo podra´n ser derogadas, modificadas o suspendidas en la forma prevista en los propios tratados o de acuerdo con las normas generales del Derecho internacional.’’). Article 10.2 of the Constitution specifies, for its part, that every legal norm on fundamental human rights must be interpreted in accordance with the Universal Declaration on Human Rights and all other international treaties ratified by Spain (‘‘Las normas relativas a los derechos fundamentales y a las libertades que la Constitucio´n reconoce se interpretara´n de conformidad con la Declaracio´n Universal de Derechos Humanos y los tratados y acuerdos internacionales sobre las materias ratificados por Espa~ na.’’). Therefore, the ECHR, like other international treaties concluded by Spain, has been inserted into Spanish domestic law by the very fact of its official publication. In case of conflict between a treaty on fundamental rights and a domestic law on the same matter, the Constitution categorically requires the conflict to be resolved in favour of the treaty. STC 71/1988 (Sala 2a), Recurso de Amparo, Sentencia de 19 de abril de 1988 and STC 181/1994 (Sala 1a), Recurso de Amparo, Sentencia de 20 de junio de 1994. According to Article 24.2 of the CE, ‘‘Asimismo, todos tienen derecho al Juez ordinario predeterminado por la ley, a la defensa y a la asistencia al letrado, a ser informados de la acusacio´n formulada contra ellos, a un proceso pu´blico sin dilaciones indebidas y con todas las garantı´as, a utilizar los medios de prueba pertinentes para su defensa, a no declarar contra sı´ mismos, a no confesarse culpables y a la presuncio´n de inocencia. La ley regulara´ los casos en que, por razo´n de parentesco o de secreto profesional, no se estara´ obligado a declarar sobre hechos presuntamente delictivos.’’ The ECtHR had declared the right to an interpreter as part of the right to a fair trial and, specifically, of the right to defence, in Luedicke, Belkacem and Koc¸ v. Federal Republic of Germany, App. no. 6210/78, Judgment of 28 November 1978, Series A No. 29). Though, this construction needs to be interpreted in light of another fundamental

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224

660.

661.

662.

criterion of the Court, which is the need to grant effectiveness to the rights recognised in the Convention (Artico v. Italy, App. no. 6694/74, Judgment of 13 May 1980, Series A No. 37, see chapter 5). In the Luedicke and others judgment, the Court declared that Germany had violated the right to due process by not granting the right to the free assistance of an interpreter. In German law, treaties do not prevail over ordinary law. Pursuant to Article 59 of the Constitution, treaties possess the same status in the hierarchy of norms as ordinary federal laws (‘‘Der Bundespra¨sident vertritt den Bund vo¨lkerrechtlich. Er schließt im Namen des Bundes die Vertra¨ge mit auswa¨rtigen Staaten. Er beglaubigt und empfa¨ngt die Gesandten; (2) Vertra¨ge, welche die politischen Beziehungen des Bundes regeln oder sich auf Gegensta¨nde der Bundesgesetzgebung beziehen, bedu¨rfen der Zustimmung oder der Mitwirkung der jeweils fu¨r die Bundesgesetzgebung zusta¨ndigen Ko¨rperschaften in der Form eines Bundesgesetzes. Fu¨r Verwaltungsabkommen gelten die Vorschriften u¨ber die Bundesverwaltung entsprechend.’’). According to Article 25 of the Grundgesetz, rules of public international law are granted a higher rank than federal legislation, but the scope of this rule is limited to general rules – that is, mainly customary rules (‘‘Die allgemeinen Regeln des vo¨lkerrechtes sind Bestandteil des Bundesrechtes. Sie gehen den Gesetzen vor und erzeugen Rechte und Pflichten unmittelbar fu¨r die Bewohner des Bundesgebietes.’’). Therefore, as such, the ECHR does not have a higher rank than ordinary federal statutes, at least formally. 74 BVerfGE 358, Beschluss des Zweiten Senats vom 26. Ma¨rz 1987 -2 BvR 589/79, 740/ 81 und 284/85, see 74 BVerfGE 370. The Federal Constitutional Court has indicated in other decisions – especially in relation to Article 3 of the Constitution – that the scope of certain fundamental rights could to a certain extent be enlarged so as to allow recourse against administrative acts and judgments which violate the European Convention. Likewise, German legal scholars have suggested that although the Grundgesetz has indeed a through and systematic structure of rights which, broadly, does not need to be completed by other supranational texts, there are however certain areas in which the reference to the supranational sources is not superfluous. The area covered by Articles 5 and 6 ECHR (on personal liberty and due process, respectively) would be one of them, representing moreover the sphere in which decisions against Germany have been pronounced. In fact, the Luedicke and others decision had an immediate impact, leading to the reform of the Act which regulated that question. It actually raised a debate among legal scholars and practitioners as to whether a formal obligation to proceed to the reform existed (see Frowein 1992, especially p. 123-134). Article 6.3 of the Convention has indeed had a considerable impact on German case law, the ECtHR having declared in the Pakelli case that the right to legal assistance had been violated by Germany (Pakelli v. Federal Republic of Germany, App. no. 8398/ 78, Judgment of 25 April 1983, Series A No. 64, see chapter 5). The subsequent German case law has followed the criteria set in this decision, although the legislation was not amended. The ratification of the Convention by Spain or Portugal (in 1977 and 1976, respectively), which had experienced the longest standing dictatorship in Europe and were thus coming out from decades of political isolation, might have represented the alignment of these countries with the rest of democratic countries. In this sense, their late ratification of the Convention is completely different from other cases such as the French, although this country only ratified the ECHR in 1974 and recognised the right to individual petition in 1981. For an analysis of the main features of the integration of the Convention in both Portugal and Spain, see Cavagna and Monteiro 1992. See, also, other decisions of the Tribunal Constitucional in which the Court refers explicitly to the doctrine of the ECtHR as regards measures of deprivation of liberty imposed on aliens: STC 13/1994 (Sala 1a), Recurso de Amparo, Sentencia de 17 de

663. 664.

665. 666.

667.

668.

enero de 1994 and STC 96/1995 (Sala 2a), Recurso de Amparo, Sentencia de 19 de junio de 1995. In relation to the Tribunal Supremo, see STS (Sala de lo ContenciosoAdministrativo), Sentencia de 10 de diciembre de 1984 (RAJ 1984/6527), where the Court implemented the proportionality test developed by the ECtHR concerning the limits set by the government on the right to peaceful assembly. 6 BVerfGE 32, Beschluss des Ersten Senats vom 16. Januar 1957. Article 1 BL: ‘‘Die Wu¨rde des Menschen ist unantastbar. Sie zu achten und zu schu¨tzen ist Verpflichtung aller staatlichen Gewalt; (2) Das Deutsche Volk bekennt sich darum zu unverletzlichen und unvera¨ußerlichen Menschenrechten als Grundlage jeder menschlichen Gemeinschaft, des Friedens und der Gerechtigkeit in der Welt; (3) Die nachfolgenden Grundrechte binden Gesetzgebung, vollziehende Gewalt und Rechtsprechung als unmittelbar geltendes Recht.’’ On this question, see, among others, Grimm 1994. Most of the principles derived from German constitutional case law are applicable to Spanish constitutional law, such as the principle of interpretation according to the values enshrined in the fundamental rights, the need to preserve the effectiveness of fundamental rights, or the definition of a system of fundamental rights as a unity which should be interpreted according to the logical and systematic function conferred upon it by the Constitution. Likewise, many of the Spanish constitutional guarantees are directly inspired in the German Constitution. This is the case of the recurso de amparo, which was designed according to the German Verfassungsbeschwerde, or the notion of essential content (contenido esencial) of the fundamental rights as a limit to the legislative power. For a study of the Spanish system of fundamental rights and the influence exercised by other constitutional models, see Freixes Sanjua´n 1992. Indeed, the case law of the Supreme Court rarely relies on Article 8 ECHR. In fact, there are no decisions of the Tribunal Supremo citing this provision in relation to the expulsion of aliens (see Gorta´zar 2001). The Spanish courts do not seem to take into account the balance of the ECtHR between non-expulsion of established aliens by virtue of their right to family life and the exception to such a right when the expulsion is justified for criminal reasons. This seems strange when taking into consideration the existence of a mechanism such as Article 10.2 of the Spanish Constitution for the reception of the supranational case law. The case law of the Tribunal Constitucional on Article 6 ECHR (see supra, on emergent rights, section I) illustrates a case of express reception. However, the reference to the supranational case law is not as extensive as it could be. From this perspective, it could be argued that Article 10.2 acquires only real effect in areas where the introduction of the supranational case law is not controversial – as in relation to the procedural guarantees of Article 6 ECHR – and not instead in areas, such as the family protection of aliens, where the Spanish society is less ready. In this sense, the role played by Article 10.2 is much smaller than had been actually expected, since it does not activate changes in the Spanish society but simply legitimises the transformations already initiated. Nevertheless, the Spanish Supreme Court has fixed a series of criteria concerning the value of the family and economic relations of the alien within the country of residence. However, these criteria have not been applied in order to limit the expulsion of aliens, but only in relation to the suspension of expulsion pending judicial review. The German BL does proclaim the universal character of the right to marriage and family protection. The decision known as the ‘‘Spanish’’ case is paradigmatic in this respect, representing the precedence of the domestic norm on the freedom of marriage, on the grounds of the universality of this norm, over the Spanish norm which should have been implemented according to the criteria governing international private law (31 BVerfGE 58, Beschluss des Ersten Senats vom 4. Mai 1971). The reasoning

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669. 670. 671.

672.

673.

674.

675.

676.

677.

followed by the Federal Constitutional Court signified proclaiming the superiority of the constitutional norms with respect to the rest of norms contained in the other legal branches. For an analysis of this decision and of its wider implications, see Becker 1971, Guradze 1971, Labrusse 1974. This notwithstanding, when deciding whether the right to family protection implies a right to permanence in the case of aliens, the reasoning of the German courts has tended to concentrate on the existence of a national partner. CE, Ass., arreˆt 8 de´cembre 1978, GISTI, CFDT et CGT. See chapter 5. CE, arreˆt 18 janvier 1991, Beldjoudi. For an analysis of the evolution of this right in French law, as a result of the interaction with the supranational case law, see, among others, Julien-Laferrie`re 1992b, Labayle 1991 and Labayle 1993. See, in this respect, CE, Ass., arreˆt 29 juin 1990, Pre´fet du Doubs c/Mme. Olmos Quintero and CE, Ass., arreˆt 29 juin 1990, Imambaccus, where the Conseil d’E´tat accepted to consider the circumstances of the family and personal situation of the alien, for the first time in relation to the removal of aliens. In Babas and Belgacem (CE, Ass., arreˆt 19 avril 1991, Babas and CE, Ass., arreˆt 19 avril 1991, Belgacem), the Conseil d’E´tat took further the reasoning introduced in Beldjoudi and implemented directly Article 8 ECHR. It proceeded moreover to the definition of the normative framework which results from the combination of these provisions. See also CE, Ass., arreˆt 6 novembre 1987, Buayi, although it concerns a different area. In this judgment, the Conseil d’E´tat introduced a normal degree of control with regard to the designation of the country of destiny in an expulsion. Its reasoning can be interpreted in light of the case law of the ECtHR on Article 3 of the Convention. The Conseil declared that this decision constituted a separate issue from the order of expulsion itself. In effect, the constitutionalisation of this right, which was expected to follow the declaration by the Conseil d’E´tat of this right as a principe ge´ne´ral du droit, only arrived after the reception of the supranational case law. In decision 93-325, the Conseil Constitutionnel confirmed finally the administrative case law and conferred on this right the status of fundamental right (De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France)). It should be noticed, for instance, the change of terminology that this influence has also involved. Instead of referring to the right to lead a normal family life, which was the expression consecrated by the Conseil d’E´tat, the reform of the 1945 Ordonnance, introduced in 1998 by Minister Cheve`nement, borrowed the terminology of Article 8 ECHR. In its Article 12 bis, the Ordonnance now foresees a residence permit which is to be conferred on the grounds of the right to private and family life. See, in this respect, CE, Sect., arreˆt 9 juillet 1997, Association EKIN, concerning the freedom of press in the sphere of aliens. In this judgment, the Conseil d’E´tat culminated the reasoning initiated in the decision Librairie F. Maspero (CE, Ass., arreˆt 2 novembre 1973, Societe´ Anonyme ‘‘Librairie Franc¸ois Maspero’’) on the control of the legality of the administrative acts. While in the latter the Conseil had recognised the possibility of a minimal control, in Ekin, it consecrated a normal control. In this way, the Conseil rendered the French law compatible with the standards set by the ECHR and thus avoided a condemnation of France, while at the same time preserving the own domestic structures. For an analysis of this decision, see Long, Weil, Braibant, Delvolve´, and Genevois 2001c. Although the Conseil d’E´tat referred in the Beldjoudi decision to Article 8 ECHR, it nevertheless esteemed that the measure of expulsion was not disproportionate and,

678.

679.

680.

681. 682. 683.

684.

685.

therefore, that no breach of Article 8 had been committed. France was finally condemned by the Strasbourg Court which defended a much wider interpretation of Article 8 and thus considered the French measure disproportionate. In this sense, although the decision of the Conseil d’E´tat represented the rupture with its previous case law and, thus, its alignment with the Strasbourg standards, the basis for a future divergence between the two jurisdictions was already enshrined in this decision. The features of this divergence are clearly illustrated in this case, which was resolved in a parallel way by these two jurisdictions, given that the Strasbourg Commission for the protection of Human Rights admitted the case prior to the ruling of the Conseil d’E´tat. According to the Commission, the French case law on Article 8 made a violation of this provision foreseeable. From this perspective, the change of criteria by the Conseil d’E´tat and, more generally, the reception of the supranational influence can be explained by the risk of condemnation by the ECtHR. See, in this sense, Abraham 1991, the conclusions presented by the Commissaire du Gouvernement in the cases of Babas and Belgacem (CE, Ass., arreˆt 19 avril 1991, Babas and CE, Ass., arreˆt 19 avril 1991, Belgacem). Generally, on the also relative impact of the ECtHR in French law, see Koering-Joulin and Wachsmann 1992, and, specifically, in relation to aliens, Labayle 1997. On this latter, see also, Malabre 2001. Although Germany does not have the historical links that France has with its former colonies, the question of whether second-generation immigrants should be entitled to a status protected from expulsions emerges in Germany with the same emphasis. During some years, the case law of the ECtHR appeared to be willing to offer a response on this issue (see Cholewinski 1994). However, its only casuistic approach – ultimately reluctant to directly challenge the sovereignty of the states part in the Convention – has failed to set up the necessary lines for a wider reform in this respect. It is now up to the states to find a general answer to this fundamental question. The expulsion of the parents was finally declared disproportionate by the Munich Higher Administrative Court, granting also interim legal protection to Mehmet. His expulsion was nevertheless ultimately executed since the Immigration Service refused to renew his residence permit which had expired. BVerwGE, Urteil vom 16. Juli 2002 -1 C 8. 02. See Huber 2001 and Sieveking 2001. See, however, an important German decision on this question, illustrative of how the Bundesgerichtshof proceeds to the delimitation of the guarantees in the detention of aliens. In accordance to the German constitutional case law, the reasoning of this Court – the highest jurisdiction in civil and criminal issues – is determined by the principle of proportionality. As the Court declared, the deprivation of liberty can only be imposed if there is no other alternative measure to obtain the aim pursued. Illustrative of the debate raised by this decision, see Kra¨nz 1986 and Noltze and Erneke 1986. See, for instance, De´cision n 79-109 DC du 9 janvier 1980 (loi relative a` la pre´vention de l’immigration clandestine et portant modification de l’Ordonnance n 45-2658 du 2 novembre 1945), De´cision n 86-216 DC du 3 septembre 1986 (loi relative aux conditions d’entre´e et de se´jour des e´trangers en France), or De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France). See, for instance, STC 115/1987 (Pleno), Recurso de Inconstitucionalidad, Sentencia de 7 de julio de 1987, STC 12/1994 (Sala 1a), Recurso de Amparo, Sentencia de 17 de enero de 1994, or STC 96/1995 (Sala 2a), Recurso de Amparo, Sentencia de 19 de junio de 1995.

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686. 78 BVerfGE 179, Beschluss des Ersten Senats vom 10. Mai 1988 -1 BvR 482/84 und 1166/85. 687. 76 BVerfGE 1, Beschluss des Zweiten Senats vom 12. Mai 1987, -2 BvR 1226/83, 101, 313/84. 688. See, for instance, CE, Sect., arreˆt 10 avril 1992, Aykan,CE, Sect., arreˆt 10 avril 1992, Marzini, CE, Sect., arreˆt 10 avril 1992, Minin, CE, Sect., arreˆt 4 novembre 1994, El Alaoui, and CE, Sect., arreˆt 4 novembre 1994, Al Joujo, Chikeror CE, Sect., Avis 30 novembre 1998, M. Berrad. 689. CE, Ass., arreˆt 8 de´cembre 1978, GISTI, CFDT et CGT. The impact of the right to lead a normal family life in the form of a principe ge´ne´ral du droit is far reaching. For instance, an interesting development of this principle is the reasoning of the Conseil d’E´tat concerning polygamous marriages, the Court having refused to hold that this should be contrary to public order in relation to a residence permit. In the view of the Conseil, a distinction should be drawn between the acquisition of rights and the production of effects by these rights, which, in the case of these marriages, is the only thing possible in France (CE Ass., arreˆt 11 juillet 1980, Ministre de l’Inte´rieur c/ Mme. Montcho, see also Feffer and Pinault 1980a). The development by the French courts of the right to lead a normal family life has had an impact on other legal orders such as the German, where the legal scholarship has even assumed the French terminology. The same question arouse in Germany, the German Federal Administrative Court following a similar reasoning (71 BVerwGE 228, Urteil vom 30. April 1985 -1 C 33.81 (OVG Mu¨nster)). For an analysis, see Kimminich 1985. Although the residence permit was also granted by the Court to the second wife of a foreign worker, its reasoning was less distinct than the Conseil’s. It departed from the general basis of Article 6 BL, on family protection, but the Court’s reasoning was ultimately focused on the right of the children to be with their mother. Article 6 BL provides: ‘‘Ehe und Familie stehen unter dem besonderen Schutze der staatlichen Ordnung; (2) Pflege und Erziehung der Kinder sind das natu¨rliche Recht der Eltern und die zuvo¨rderst ihnen obliegende Pflicht. U¨ber ihre Beta¨tigung wacht die staatliche Gemeinschaft; (3) Gegen den Willen der Erziehungsberechtigten du¨rfen Kinder nur auf Grund eines Gesetzes von der Familie getrennt werden, wenn die Erziehungsberechtigten versagen oder wenn die Kinder aus anderen Gru¨nden zu verwahrlosen drohen; (4) Jede Mutter hat Anspruch auf den Schutz und die Fu¨rsorge der Gemeinschaft; (5) Den nichtehelichen Kindern sind durch die Gesetzgebung die gleichen Bedingungen fu¨r ihre leibliche und seelische Entwicklung und ihre Stellung in der Gesellschaft zu schaffen wie den ehelichen Kindern.’’ In any case, this case law was later rectified. For its part, the Conseil Constitutionnel, in its famous decision 93-325, declared it legitimate to refuse permanence to persons in polygamous marriages, by arguing that it corresponds to the host country to define what constitutes ‘‘a normal family life’’ (De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France), paragraph 77). Likewise, in Germany, a later decision of the Federal Administrative Court affirmed that spouses in polygamous marriages could be denied the residence permit (BVerwGE, Beschluss des Ersten Senats vom 4. April 1986 -1 A 10. 86). 690. For an analysis of the category of the principes ge´ne´raux du droit in the sphere of aliens, see Pierucci 1999, examining the creation by the French administrative judge of a subcategory of principes ge´ne´raux du droit for the field of aliens. In the view of this author, this subcategory puts forward the relationship between international and national norms as well as the creative role of the juge administratif with regard to both constitutional law and international law. His analysis concentrates on refugees and extradition. Ultimately, according to Pierucci, the Conseil d’E´tat refers to international law in order to give answer to questions for which no specific norm is

691. 692.

693.

694. 695.

696.

697.

698. 699.

foreseen in France. In this way, though, the Court ends up using international law as a way to legitimise the definition of the principes ge´ne´raux du droit. Also, for a better understanding of French administrative law as a law created by the courts, see Genevois 1992b, defining the value of these general principles and of the criteria underlying the case law of the Conseil d’E´tat, trying thus to set a hierarchy among them. For a comparison between the mechanisms of protection of fundamental rights in these countries, see Stone Sweet 1999. Also, among others, see Rousseau 1992. On the relationship between the administrative and the constitutional jurisdictions in France, see Vedel 1992, analysing the influence of the Conseil d’E´tat on the Conseil Constitutionnel, as opposed to other national cases, where the Constitutional Court plays a more predominant role. The Conseil Constitutionnel is indeed very particular in comparative law, clearly conditioned by the historical and political circumstances. See, on this question, Ziller and Ponthoreau 2002, Vroom 1988 and Stone Sweet 1992. Its introduction raised in France a serious debate, its defenders being accused of creating a ‘‘gouvernement des juges’’. See, on this, Rousseau 1998, Blanquer 1998, Pactet 1998, Favoreu 1982, Favoreu 1990, Favoreu 1996, representing the different positions on this question, as well as Lo´pez Pina 1991, for a general comparative discussion on the mechanisms of protection of fundamental rights. Very significant in this respect is the Kone´ decision, where, in a case of extradition, the Conseil d’E´tat referred for the first time to the principes fondamentaux reconnus par les lois de la Re´publique, a category normally implemented by the Conseil Constitutionnel. CE, Ass., arreˆt 3 juillet 1996, Kone´. For an analysis, see Long, Weil, Braibant, Delvolve´, and Genevois 2001a. Actually, the Conseil d’E´tat referred to this category of principles in order to express its view on international norms, since these can be only interpreted in light of the constitutional parameters. In any case, it signified adapting the traditional division of competence between the Conseil Constitutionnel and the Conseil d’E´tat. STC 94/1993 (Sala 1a), Recurso de Amparo, Sentencia de 22 de marzo de 1993, Evangelina L. Venzo´n. See, for instance, STS (Sala de lo Contencioso-Administrativo), Sentencia de 3 de noviembre de 1981, Lynne B. y D. Gordon R. L. (RAJ 1981/4726), or STS (Sala de lo Contencioso-Administrativo), Sentencia de 10 de noviembre de 1986 (RAJ 1986/6646). See, for instance, CE, Sect., Avis 30 novembre 1998, M. Berrad, where the Court explicitly linked the right to family life to the right to permanence. Thus, the actual protection conferred was stronger than the one foreseen by the Convention, as a result of combining the Ordonnance and the ECHR. Compare, for instance, the reasoning of the ECtHR in cases such as Gu¨l (Gu¨l v. Switzerland, App. no. 23218/94, Judgment of 19 February 1996, Reports 1996-VI) or Ahmut (Ahmut v. The Netherlands, App. no. 21702/93 Judgment of 28 November 1996, Reports 1996-VI), with national court decisions – or, even, ECJ decisions – in which the right to family reunification is clearly affirmed. See, for example, the proclamation by the Conseil Constitutionnel of the right to family reunification as implying, in particular, the right to be joined by the spouse and the minor children (De´cision n 93-325 DC du 13 aouˆt 1993 (loi relative a` la maıˆtrise de l’immigration et aux conditions d’entre´e, d’accueil et de se´jour des e´trangers en France), paragraph 70). CE, Sect., arre`t 9 juin 1999, M. et Mme. Forabosco and CE, Sect., arreˆt 9 juin 1999, Mme. Hamssaoui. For a thorough analysis of this case law, see Guild 1999.

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700. Ibid., p. 439. 701. D. v. the United Kingdom, App. no. 30240/96, Judgment of 2 May 1997, Reports 1997-III. 702. BVerwGE, Urteil vom 15. April 1997 -9 C 38/96 (Kassel). 703. See Hailbronner 1999a and Huber 2001, evaluating differently this German case law which opposes the principles set by the ECtHR. 704. The European integration has also signified the transformation of fundamental premises concerning national sovereignty. This has led to the development of a new judicial reasoning which, departing from the privileges reserved for the Community nationals, has also indirectly affected third-country nationals. See, for instance, the reasoning of the Tribunal Constitucional in its decision 116/1993 (STC 116/1993 (Sala 1a), Recurso de Amparo, Sentencia de 29 de marzo de 1993), arguing that the extension of the freedom of movement is not exclusively reserved to Community nationals, a certain protection being also possible for third-country nationals. See, likewise, the subsequent improvement of the judicial guarantees as regards the refusal of entry permits to aliens (STS (Sala de lo Contencioso-Administrativo), Sentencia de 11 de abril de 1995 (RAJ 1995/3172)). In many countries, the protection against expulsions is practically the same for EU and non-EU nationals. In relation to political rights, see the discussion implicit in the decision of the Federal Constitutional Court on the extension of these rights to aliens. Although the Court finally rejected this possibility, it remains however to be seen whether the European integration process has actually affected the grounds on which the exclusion of aliens from the political sphere was traditionally grounded (83 BVerfGE 37, Urteil vom 31. Oktober 1990 -2 BvF 2, 6/89 and 83 BVerfGE 60, Urteil vom 31. Oktober 1990 -2 BvF 3/89). 705. On the results of the interaction between the national and the supranational normative frameworks, see Pacteau 1995, focusing however on France. 706. See also in this sense a very recent and far-reaching decision of the German Federal Constitutional Court in which the Court has declared that asylum-seekers from certain countries may no longer claim the risk of torture as a sufficient ground to warrant protection in Germany (BVerfGE, Beschluss vom 24. Juni 2003 -2 BvR 685/03). Paradoxically, the case does not concern an asylum-seeker but an alleged swindler wanted by the Indian authorities. 707. See, in this sense, Shapiro 1981, analysing the role of courts and their participation in the creation of the law. In the view of this scholar, in the continental law systems, the courts also play a fundamental role in the definition of the law, as in common law countries. See also Shetreet 1988. 708. See in this sense Dı´az Picazo Gime´nez 1992, pointing out at the main differences between the continental and common law systems as regards the role of the courts. For a study of the origins of the continental model of judiciary, see Troper and Fromageau 1980. 709. See Lochak 1985, analysing the subordination of immigration law to political interests. As she argued, the e´tat de police, and not the e´tat de droit, is what characterised aliens’ lack of protection and legal guarantees during the main period of arrival of immigrants to France. 710. See, among others, Guiraudon 1998, Guiraudon 2000, Joppke 2001, Legomsky 1987, Hollifield 1999, analysing the role of the courts in the field of immigration as a privileged actor in a politically sensitive area. 711. A fundamental contribution to the debate on the implications of the constitutional courts for the traditional division of powers was Bo¨ckenfo¨rde’s analysis of the techniques of interpretation developed by the German Federal Constitutional Court

712.

713. 714.

715. 716.

717.

(Bo¨ckenfo¨rde 1976). See also Ossenbu¨hl 1976. Likewise, see Rubio Llorente 1988, Landfried 1984, and Landfried 1988. See, on this question, Rousseau 1993 and Rousseau 1998, arguing that the traditional understanding of the legislator as the expression of the general and sovereign will of the nation is no longer valid, a new authority having thus to be introduced to counterbalance the legislator. In the view of this author, the constitutional court emerges as this new authority, representing a new space of interactive discussion on society’s actual problems. The new role conferred upon this Court is interpreted by Rousseau as expressing the need to renew the concept of democracy after the defeat of the empire of the law, verified by the experience of fascism, and after the fading of the belief in technocrats, with the end of the welfare state. As argued by Rousseau, France represents the best example of these two attempts. In this sense, the constitutional jurisdiction represents a new authority that ensures a permanent control of the public authorities, making therefore possible a new and continuous type of democracy in which an identity between the ruling and the ruled no longer exists. Constitutional justice thus constitutes a ‘‘continuous’’ democracy, as in between the direct and the representative one (Rousseau 1992). Furthermore, in response to Carl Schmitt’s fears of politicisation of justice, Eduardo Garcı´a de Enterrı´a has argued that the constitutional jurisdiction creates an open space of discussion, integrative of the different public authorities and social forces, which strengthens society’s political basis, and thus renews and gives new legitimacy to the social contract (Garcı´a de Enterrı´a 1985, pp. 195-196). On this question, see also Favoreu 1990 and Favoreu 1996. However, despite this recent evolution which seems ultimately to lead both America and Europe to a similar constitutionalism, there are still substantial differences between these two models. In Europe, the judicial review is not the result of a spontaneous and natural development of the judiciary’s basic premises, as in America, but a political option which reflects all the difficulties met in the transit from the liberal to the democratic state. Although the point of departure was not very different in America and Europe (i.e. the need to reinforce the national sovereignty and to grant the primacy of the constituent power), in practice, the dominating tradition in Europe – monarchic and aristocratic – made a correct implementation of the constitution and its mechanism of control impossible (Pe´rez Royo 1998, p. 34). Actually, as argued by legal scholars such as Mauro Cappelletti, the countries that have been forced to go through the destruction of their own constitutional state prior to their democratisation are the ones having incorporated this new model of constitutional justice. From this perspective, constitutional justice does not represent an indicator of good democratic health, but rather the contrary, symbolising the distrust of parliamentary majorities, as happened in many European countries. In the words of Mauro Cappelletti, European countries coming out from non-democratic regimes do not seem to find a better response than constitutional justice to escape from old ghosts and fears (Cappelletti 1986, p. 16). Kelsen 1928. See, on this question, Stone Sweet 1999, analysing how after the experience of the Second World War, ‘‘Kelsen’s admonition was easily swept aside in the race to legitimise new regimes by entrenching constitutional rights’’. Though, as predicted by Kelsen, this led to the development of constitutional courts into powerful policymakers. See Stone Sweet 2000, analysing the reasoning introduced by the constitutional courts in Europe as the direct consequence of the legislator’s loss of legitimacy. See also, Shapiro and Stone Sweet 2002.

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718. Different ideological trends seem in fact to prevail in each of these jurisdictions. An explanation might be found in the judges’ different background. Judges appointed from academic positions, such as the members of the Federal Constitutional Court, tend to put more stress on scholarly opinion than judges who have always practised law. 719. On this question, see Bon 1991. For a general characterisation of constitutional justice in Europe, see Rubio Llorente 1992. 720. Though, the specific role played by the courts is different according to the legal structures in each country. For instance, in Germany, where the administration is regulated in a very precise and detailed way, its acts are not so much corrected by the judiciary as directly by the legislator. Instead, in France, the role played by the Conseil d’E´tat is fundamental in the setting of limits to the administration. 721. See Groenendijk and Guild 2001, analysing how the definition of a status of long-term resident aliens is actually very similar in European countries. Instead, as these authors argue, a convergence is much more unlikely as regards first entry and permanence permits, which is a question essentially conditioned by national circumstances, as well as by the states’ historical and cultural links with third countries. See likewise Weil 1998, arguing that while it is possible to observe a convergence between the national procedural rules on immigration, the final outcome of the respective immigration policies is nevertheless very different. In the view of this author, these final differences are due to politically and historically distinct backgrounds. This explains why policies which are in principle similar, are actually implemented in very different ways. Specifically, for consideration of the cases of France and Germany, see Weil 2000, sustaining that very different type of reasons in each country can nevertheless lead to finally converging solutions. 722. See, for instance, Hammar 1990, who uses the category of denizens to express the new emerging situation of aliens who are permanent residents in the host countries, and in a way occupy a status between aliens and nationals. See also, Rubio Marı´n 2000, for an analysis of the different mechanisms of integration of aliens in the host societies. As argued by this author, whereas lawfully residing aliens are conferred increasing protection, the sphere of political rights is still reserved to nationals. Rubio Marı´n proposes a more flexible concession of nationality to aliens as the only way to assure a full integration in the host country. Her study represents a jurisprudential analysis of the different evolution of aliens’ status in Germany and the United States, grounded on the liberal basis of these two countries’ Constitutions. 723. Illustrative of this are the standards of protection achieved in Spain, which are lower than the ones in France and Germany although Spain has very modern constitutional mechanisms of protection of fundamental rights. In the final analysis, the reluctance shown by the Spanish courts to develop fully these mechanisms expresses, thus, the country’s mentality vis-a`-vis the novelty of immigration. 724. See Lochak 1985. 725. Weiler 1992, p. 91. 726. The asylum reform carried out in France is paradigmatic in this respect. In its famous decision 93-325, the Conseil Constitutionnel defined the right to asylum as a subjective right of the individual and as a correlative obligation of the state, thus refusing the reasoning of the government, which argued that asylum was merely a discretionary prerogative of the state. This decision gave rise to a major political debate, in which the Conseil was accused of judicial activism and of overstepping the limits of its competence, thus hindering the ratification of the Schengen Agreement. The whole discussion resulted in a constitutional reform which neutralised the effects of that decision. For an analysis of this discussion and of the wide implications of this decision, see Soltesz 1995. Similar circumstances have ultimately characterised the

727.

728.

729. 730.

latest reforms carried out in Spain, after the Tribunal Supremo, in a recent decision of 20 March 2003, declared illegal the government’s regulation of implementation of the Aliens Act. The reaction of the government to this decision was immediate, proceeding to the reform of the Act in order to render the regulation legal. Indeed, different ways have been found by the governments round the courts’ decisions. For instance, another mechanism weakening the courts’ impact on the governments’ discretionary prerogatives is the delegation of the control responsibility over immigration issues, carriers now controlling the arrivals of asylum-seekers in the EU. See, in this sense, Guiraudon and Lavah 2000, arguing, against those who affirm the impact of the international mechanisms on the state sovereignty, that the supranational level is actually used by the states in order to avoid the controls consecrated internally. See also on this question Sassen 1999, analysing the effects of transnational immigration on the classical structure of the states. According to Sassen, the new structures emerging from the globalised economy give place to an interaction between new actors, the states no longer representing the exclusive competent authorities. See the analysis by Ralf Dahrendorf (La Vanguardia, 28 August 2003), arguing the need to limit the increasing role of the courts in society. Although the courts offer the flexibility that the legislative power lacks in the creation of the law, their participation ultimately slows the legislative process. In Dahrendorf’s opinion, the role of the courts in this process is fundamental so long as they only intervene as a last resort. See in this sense Rubio Llorente 2001, interpreting the current expansive competence of the courts as the result of the confluence of two different conceptions: the Rechtstaat – fundamentally represented by Germany – and the (anglosaxon) rule of law. The primacy achieved by fundamental rights after the Second World War has conferred a new role upon the courts, this demonstrating the influence of the American conception of judicial review which is also performed on legislation. In the view of Rubio Llorente, whereas the intervention of the courts is legitimate inasmuch as it imposes negative obligations on the public authorities, the courts overcome their own limits as soon as these obligations become positive. According to this author, the risk of conferring on the judiciary the protection of fundamental rights is the fact of attributing a normative competence to the courts, since this can actually mean having to accept their own and unilateral vision of justice. In the view of this author, a fundamental distinction has thus to be drawn between fundamental and human rights. Whereas the role of the courts is to assure the respect of the fundamental rights – the ones consecrated by the constitutions – the realisation of the human rights corresponds exclusively to the authorities democratically and legitimately elected. Mattei 1992, p. 462. Dworkin 1977. Hercules is a mythical judge with the infinite time and skill to decide hard cases of law. He decides cases by developing a political theory that both fits the institutions of his legal system and justifies those institutions. Dworkin’s theory of adjudication seeks to explain and justify judicial decisions on the basis that they are, and should be, generated by principle not policy. Thus, in hard cases, judges are not legislating, as positivists claim, but extrapolating based on principle. Judges have an obligation not only to apply rules, but also to ensure that the legal system is consistent with the principles of the society. When judges are said to legislate, they are discovering, not making rules. As Dworkin understands it, the role of the courts is to protect the rights of the persons from the possibility of unjust rules or other situations in which the written laws do not adequately protect their natural (nonwritten) rights. Since judges have an obligation to protect rights, they must step in and make decisions to protect such rights. The character of judicial reasoning is not

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one of discretion, then, but of an obligation to seek out a decision based on principle that protects rights and upholds the moral norms of society. Different arguments have been raised against this theory. For instance, Jeremy Waldron has criticised such a general conception of justice and rights by arguing that it disrespects the essential content of politics, which is disagreement over fundamental principles (Waldron 1999). Waldron thus claims renewed respect for democratic politics and its ultimate product, legislation, on the grounds of the authority earned by the very act of passing binding, formal law in the context of disagreement. As argued by Waldron, judges disagree among themselves just as much as citizens and legislatures and ‘‘make their decisions, too, in the courtroom by majority voting’’ (p. 15). 731. Chemerinsky 1985, p. 553.

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