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The First Decade of EU Migration and Asylum Law [1 ed.]
 9789004215870, 9789004212039

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The First Decade of EU Migration and Asylum Law

Immigration and Asylum Law and Policy in Europe Edited by

Jan Niessen Elspeth Guild

VOLUME 24

The titles published in this series are listed at www.brill.nl/ialp

The First Decade of EU Migration and Asylum Law By

Elspeth Guild Paul Minderhoud

LEIDEN • BOSTON 2012

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Guild, Elspeth. The first decade of EU migration and asylum law / by Elspeth Guild, Paul Minderhoud. p. cm. -- (Immigration and asylum law and policy in europe, 1568-2749 ; v. 24) Includes index. ISBN 978-90-04-21203-9 (hardback : alk. paper) 1. Emigration and immigration law-European Union countries. 2. Asylum, Right of--European Union countries. I. Minderhoud, P. E. (Paul E.) II. Title. III. Title: First decade of European Union migration and asylum law. KJE6044.G85 2011 342.2408’2--dc23

2011034630

ISSN 1568-2749 ISBN 978-90-04-21203-9 Copyright 2012 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

Contents Preface to the First Decade of EU Migration and Asylum Law��������������������������vii Elspeth Guild, Paul Minderhoud and Ryszard Cholewinski Introduction: Migration and Law in Europe���������������������������������������������������������� 1 Kees Groenendijk Section 1:  EU Citizens? Citizenship in Motion: The Development of the Freedom of Movement for Citizens in the Case-law of the Court of Justice of the European Union��������������������������������������������������������������������������������������������������25 Jonathan Tomkin EU Free Movement of Persons and Member States’ Solidarity Systems: Searching for a Balance��������������������������������������������������������������������������������������47 Herwig Verschueren The Privileged Treatment of Turkish Nationals����������������������������������������������������75 Denis Martin Section 2:  EU Borders and Irregular Migration Has Europeanization Silenced Criticism on Intergovernmental External Border Cooperation?���������������������������������������������������������������������������95 Helen Oosterom-Staples The EU Acquis on Irregular Migration Ten Years On: Still Reinforcing Security at the Expense of Rights?�������������������������������������������������������������������127 Ryszard Cholewinski The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly? (The adoption of Directive 2008/115: the Returns Directive)���������������������������������������������������������������������179 Diego Acosta Arcarazo Detention of Foreigners�����������������������������������������������������������������������������������������207 Galina Cornelisse

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Section 3:  EU Immigration and Asylum The Impact of the Treaty of Lisbon over EU Policies on Migration, Asylum and Borders: The Struggles over the Ownership of the Stockholm Programme�������������������������������������������������������������������������������������229 Sergio Carrera Common EU Standards on Asylum – Optional Harmonisation and Exclusive Procedures?���������������������������������������������������������������������������������������255 Jens Vedsted-Hansen The Externalisation of European Migration Control and the Reach of International Refugee Law���������������������������������������������������������������������������273 T. Gammeltoft-Hansen The Long-Term Residents Directive: A Fulfilment of the Tampere Objective of Near-Equality?�����������������������������������������������������������������������������299 Louise Halleskov Storgaard Love Thy Neighbour: Family Reunification and the Rights of Insiders������������329 Betty de Hart An Ideal Husband? Marriages of Convenience, Moral Gate-keeping and Immigration to the United Kingdom�������������������������������������������������������351 Helena Wray Section 4:  The Right to have Rights Effective Remedies for Third Country Nationals in EU Law: Justice Accessible to All?�����������������������������������������������������������������������������������������������377 Evelien Brouwer Access to an Effective Remedy before a Court or Tribunal in Asylum Cases����������������������������������������������������������������������������������������������������401 Marcelle Reneman Immigration, Asylum and the European Union Charter of Fundamental Rights������������������������������������������������������������������������������������������437 Steve Peers Appendix���������������������������������������������������������������������������������������������������������������469 List of Contributors����������������������������������������������������������������������������������������������473 Index����������������������������������������������������������������������������������������������������������������������479

Preface to the First Decade of EU Migration and Asylum Law Elspeth Guild, Paul Minderhoud and Ryszard Cholewinski More than a decade has passed since the appearance of the first issue of the European Journal of Migration and Law (EJML). The journal was established to examine the intertwining of issues of law and migration in the EU and the wider Europe. Following the 1999 changes in competence in the EU with the institutions gaining for the first time powers to adopt legislation regarding the admission and residence of third-country nationals who are not related to EU citizens, the journal provided a dedicated venue for academic analysis of this transformation in EU and national law. The changing nature of sovereignty in the EU in these highly charged areas proved a rich source of academic discussion and political debate, reflected in the articles and case commentary which we published over the past ten years. The Lisbon Treaty coming into force in 2009 has further extended the scope of EU immigration and asylum law and the revolutions in North African states in 2011 undoubtedly prove a testing ground for the EU’s capacity for consistent and coherent law and policy making in the field. With this book we celebrate the EJML’s first ten years. The EJML itself is the basis for the book: we have returned to authors who have written the most significant contributions for the journal on the relevant issues to the Area of Freedom Security and Justice (AFSJ) and asked them to revise and update their articles in light of the developments which have taken place since they first wrote them. We have supplemented these by commissioning new chapters we wish we had published on issues which have turned out to be particularly important to the development of the field. The success of the journal has demonstrated the need for informed, independent academic research on the changing nature of immigration and asylum in Europe. It has also shown how wide the scope and effect of immigration or asylum law decisions are in other policy fields. Among the most startling has been the capacity of immigration law to transform the content of citizenship (through integration tests) and family membership (family reunification rules). The journal would never have seen the light of day without the hard work, support and dedication of many people. It would never have made it to its tenth birthday without the imagination and flair of many others. To thank everyone would be impossible but at least a short list is necessary. First, we,

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the editors, would like to thank everyone who has ever submitted an article to the journal. Without you, the journal would not exist. Although in some cases we have not been able to publish submissions, nonetheless your enthusiasm and academic scholarship is always appreciated. Secondly, we would like to thank all our readers. A journal exists for its readers who use the journal to enhance their knowledge of the field. Our readers are indeed enthusiastic – you find us in university libraries and on the internet and we see articles which we published in the journal increasingly cited in your work. Through our contributors and readers the journal has become an important part of the academic and policy world on EU immigration and asylum. Over the first ten years of the journal we have had a rather stable editorship. Jan Niessen of the Migration Policy Group has been a stalwart co-editor, present when we have needed him but not interfering in the day-to-day operation of the journal. Thomas Spijkerboer now Professor of Migration Law at the Free University of Amsterdam was an excellent co-editor for many years, leaving us at the end of 2003 for other activities. Paul Minderhoud and Elspeth Guild both of Radboud University Nijmegen have remained original coeditors and shared the joys and trials of ten years of AFSJ. Ryszard Cholewinski, presently at the ILO, joined us as a fellow editor at the beginning of 2004. and brings with him the international perspective on migration beyond the narrow borders of the EU. Our editorial and advisory boards have provided crucial guidance on the larger issues of the journal, always available for consultation, advice and a helping hand when we needed it. We would take this opportunity to thank all of them, both current and past. A special thanks is due to Kees Groenendijk who has written the introduction to this book – providing an important overview of our work. Kees has been the most encouraging of board members, not only contributing important articles on breaking subjects but helping us with even the daily work of ensuring the high quality and scholarship of the journal. Hannie van de Put at the Faculty Secretariat has spent many hours working on the presentation of the journal to ensure its high specifications. We owe a great deal to Hannie for her work and thank her for it. Journals only exist with the support and commitment of their publishers and here we have been particularly fortunate to have the unflagging commitment of Brill and our Commissioning Editor, Lindy Melman. She has been a pillar of the journal, inspiring us to work harder, encouraging us with our work when the grind of daily academic work wore us down and always ready to help when we had questions or problems. Our deep thanks to the whole team at Brill for their support.

Preface  ix

Contents of the Book In this book we cover the field of EU immigration and asylum law from four perspectives. The introduction sets out the long durée of EU immigration and asylum law: from discretion to law, from national to European law, from integration to exclusion and the issues currently confronting the EU – this contribution by Kees Groenendijk is imperative reading for all scholars interested in the field. In the first substantive section, we examine how EU citizens moved from being foreigners in their host state to co-citizens with attention to the areas where this transformation is as yet incomplete. In the second section we look at the question of the EU borders and irregular  migration. The logic here is that it is the manner in which borders are constructed in law and practice that creates or effaces so-called irregular migration. The most recent examples of this in the EU are the 2004 and 2007 enlargements which resulted in the dramatic reduction of the numbers of persons whose details were held on the Schengen Information System as thirdcountry nationals to be refused admission to the EU. By conferring EU citizenship on nationals of these 14 countries, irregularity of residence in the EU diminished substantially. In the third section we consider EU immigration and asylum law and practice. On the basis of the many excellent articles which have appeared over the years in the EJML, we bring up to date the scholarship in this field, our authors revisiting their earlier work in the light of the subsequent developments. Not only is the EU’s Common European Asylum System the subject of much work, but the way it is now troubling the European Court of Human Rights is also important. The final section is entitled the right to have rights, a homage to Hannah Arendt whose work on refugees remains among the most poignant in the European tradition. When EU immigration and asylum law leave the pages of the Official Journal to enter the lives of individuals, the issue of a right to remedies, access to justice and the protection of fundamental rights becomes central. In this last section our authors address these key questions. This preface ends with a summary of the chapters by section.

Section 1: EU Citizens? The chapter of Tomkin traces the development of the freedom of movement for citizens in the case-law of the Court of Justice. It first provides a survey of the jurisprudential and legislative context in which citizenship provisions

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were introduced following the entry into force of the 1992 Maastricht Treaty. It proceeds to group and consider the Court’s citizenship case-law under three categories. The first category concerns cases where the Court combines Union citizenship with the right to equal treatment. The second category concerns the prohibition of measures impeding the freedom of movement – whether introduced by a ‘home State’ from which a Union citizen originates or the ‘host State’ to which a citizen has or wishes to migrate. The third category of cases considers the extent to which movement is a precondition to the enjoyment of citizenship rights and examines the prohibition of reverse discrimination of ‘static’ Union citizens. It is argued that the introduction of Union citizenship has resulted in a paradigm shift as regards the place of Union citizens in the Union legal order. No longer are they granted rights merely as economic means serving economic ends, but derive rights by virtue of their status as citizens of the Union. According to Verschueren, in recent years there has been much discussion on the definition of the boundaries of national solidarity systems guaranteeing a minimum level of subsistence for economically inactive persons moving within the EU. The main purpose of this chapter is to demonstrate the balance that has been struck between the free movement rights, those of economically inactive persons included, and the Member States’ interest in limiting access to their solidarity systems. It starts by exploring the recent developments in the ECJ’s case law towards a broad interpretation of the concept of ‘worker’, and the effect this has with regard to access to social minimum benefits for some categories of inactive persons and the members of their family. Secondly, it sets out to analyse the impact of the provisions agreed in Regulation 883/2004/EC on the Member States’ responsibility for the payment of minimum subsistence benefits to economically inactive migrant persons. Special attention is paid to the consequences of this financial responsibility in relation to the application of Directive 2004/38/EC on the right of residence for EU citizens and members of their families. Finally it comments on the effect the ECJ’s recent case law, based on the concept of European citizenship, has on economically inactive EU citizens’ entitlement to social minimum benefits when they move within the EU. Martin shows that social provisions of the various texts governing the relations between the Community and Turkey were always given a fairly wide interpretation by the Court of Justice, after an initial mixed application in Case 12/86, Demirel, in which it ruled that Turkish workers do not enjoy a right to free movement. However, in the same ruling the Court also held that all those provisions are, so far as possible, to be interpreted in the light of the similar provisions applying to EU workers. This has since then been the consistent leitmotiv of the Court’s case-law, in particular over the last

Preface  xi

ten years, with the consequence that Turkish workers (both employed and self-employed) do really enjoy a privileged treatment in Union law. Such treatment is not enjoyed by nationals of any other third State (European Economic Area states aside). The most recent case-law leaves an interesting issue unresolved: does this extensive case-law also apply to recipients of services? An affirmative reply would further enhance Turkish nationals’ status in EU law. That case-law also leads to wonder whether Turkish nationals do not sometimes benefit from a privileged treatment even when compared to EU nationals? An affirmative reply was undoubtedly not intended by the drafters of these various texts.

Section 2: EU Borders and Irregular Migration Since the Schengen Agreements took effect in the mid-1990s, the Member States have slowly joined forces to protect their external borders, transforming Europe into what has been dubbed ‘Fortress Europe’. The contribution of Oosterom-Staples focuses on the rules on external border policies which have gradually replaced the Schengen Agreements following the entry into force of the Amsterdam Treaty that incorporated the Schengen acquis into the European Union’s legal order, i.e. the Schengen Borders Code and the rules on short-term visas for stays of up to three months in respect of those thirdcountry nationals for whom visas are required. The analysis aims at answering the question whether Europe’s new external border rules are capable of silencing the criticism voiced on their predecessors; i.e. their democratic deficit, lack of openness and transparency and the position of the individual trying to exercise his/her rights under these rules. The case law that has emanated from the Dutch courts is used to ascertain how courts are addressing the problems encountered by individuals exercising their rights. The chapter of Cholewinski argues that the EU’s approach to date in addressing irregular migration has lacked balance because of a failure to devote sufficient attention to the protection of the rights of third-country nationals in an irregular situation in the context of a more comprehensive approach to the issue. It contends that an EU agenda based largely on security aspects cannot alleviate the problem of irregular migration in the long term. Although the protection of the rights of migrants in irregular status was signalled in some of the earlier communications issued by the European Commission as part of a broader package of measures, this has not found its way into the EU measures that have since been adopted. Even though some of the more recently adopted measures and proposals contain a number of positive provisions – thanks essentially to the greater role of the European Parliament in the EU legislative

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process – these cannot be viewed as amounting to a rights-based comprehensive approach. According to Acosta Arcarazo, historically the European Union has had a dichotomy between the liberal view in immigration management represented by the Parliament (‘the good’) and the Commission (‘the ugly’), and the conservative approach embodied by the Council (‘the bad’). This article deals with the first important immigration instrument adopted under co-decision: Directive 2008/115 (the so-called ‘Returns Directive’). This Directive has received a great deal of criticism addressed to the European Parliament in its approval of the text negotiated with the Council in the first reading, without introducing a single amendment. This conduct has cast doubts as to whether the future involvement of this institution will result in a more migrant-friendly approach in the European Union. The reasons why the European Parliament voted in favour of the Directive is analysed in the chapter. But first, a question arises: Is the European Parliament becoming ‘bad’ and ‘ugly’ or has its involvement improved the Council’s position in a way which would not have been possible without its participation? This is the main issue that this chapter tries to answer by analysing the different steps in the adoption of the Directive from the Commission’s proposal until its official publication. The chapter of Cornelisse addresses the way in which the European Court of Human Rights (ECtHR) deals with deprivations of liberty in an immigration context under Article 5 of the European Convention on Human Rights (ECHR). When and under which circumstances does the ECtHR consider immigration detention a legitimate and lawful measure that states may employ in order to protect their borders? The Court’s approach to immigration detention is compared with the protection offered to another category of individuals who may be deprived of their liberty under Article 5 ECHR, namely persons of unsound mind, alcoholics or drug addicts and vagrants. This comparison brings to light serious inconsistencies in the Court’s assessment of immigration detention, which are brought about by a particular understanding of territorial sovereignty which has, until now, barely been challenged. However, the emerging law of the European Union on the detention of foreigners may eventually compel the Member States to adhere to a more consistent understanding of the right to liberty in immigration procedures as a fundamental right.

Section 3: EU Immigration and Asylum The chapter of Carrera examines the struggles between the European Commission and the Council over the ownership of the Stockholm

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Programme, which outlines the policy and legislative agenda to cover EU policies on migration, integration of immigrants, asylum and external borders checks for the next five years. It puts in relation the Stockholm affair with the most relevant transformations introduced by the Lisbon Treaty over these policy domains. By examining the new post-Lisbon institutional and decisionmaking landscape, the contribution aims at shedding light on the potential effects that the Stockholm affair may inflict over the future configurations and priorities to guide EU policies on migration, asylum and borders. The chapter of Vedsted-Hansen discusses the regulatory differences between some of the core EU asylum standards that were adopted during the transitional period following the entry into force of the Amsterdam Treaty. Given the interrelationship and interdependence of standards on procedural and substantive aspects of protection, particular attention is paid to the differences between the Refugee Qualification Directive (2004/83/EC) and the Temporary Protection Directive (2001/55/EC) on the one hand, and the Asylum Procedures Directive (2005/85/EC) on the other. While the vast amount of optional derogations from the minimum standards of the latter Directive may be a logical consequence of the initial unanimity requirement, an attempt is made to explain the diverging degrees of harmonisation of procedural and substantive standards. It is here posited that, in addition to regulatory tradition and existing international obligations, calculated evasion may have played a role inasmuch as Member States may have had tacit expectations of a lack of transparency in the implementation of the definitional standards of the Qualification Directive. To the contrary, as the standards on asylum procedures are more transparent and their implementation more readily controllable, Member States could not expect similar possibilities to evade minimum standards in this area. Based on experience from the first period of implementing the asylum Directives, these assumptions are being reconsidered, and additional factors are identified. Still, the absence of harmonised asylum decisions across Member States may be seen as an indirect result of the many optional provisions in theAsylum Procedures Directive, since the divergent examination procedures may in reality be one among other causes of the different application of definitional standards. Against this background, the potential and the challenges of a single asylum procedure as part of the Common European Asylum System are discussed. Gammeltoft-Hansen examines the growing ‘externalisation’ of the EU’s migration control. Today, border control no longer takes place only at the physical borders of the European Union. Rather, migration is managed at every step of the route. Immigration officers are posted overseas and the EU’s border agency FRONTEX is coordinating interception operations across the Mediterranean. Further, transit and origin countries are increasingly wooed

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to enter into cooperation with Member States in regard to migration management. Thus, the actual performance of control is increasingly delegated to authorities of non-EU countries. These developments raise a number of important questions in regard to the asylum-seekers and refugees that we know are among those rejected. First, does the 1951 Refugee Convention apply extraterritorially, and if so, under what conditions? Second, how is responsibility organised in cases where migration control is outsourced or carried out by more than one state? Taking as a starting point the recent Treaty on Friendship, Partnership and Cooperation signed between Italy and Libya on 30 August 2008, this article first revisits the old debate on the extraterritorial application of Article 33 of the 1951 Refugee Convention. Second, the issue of indirect obligations when aiding or assisting another state in carrying out migration control is discussed in the context of the International Law Commission’s Articles on State Responsibility. The contribution of Halleskov Storgaard focuses on Council Directive 2003/109/EC concerning the status of third-country nationals who are longterm residents from the perspective of long-term resident migrants working in an employed capacity in one of the Member States. The main question the article seeks to answer is whether the legal status accorded to this particular group of third-country nationals by the Directive in respect of equality rights, fulfils the vision of ‘near-equality’ set out by the political leaders at the 1999 Tampere European Council. For the purpose of this examination, EU law governing the freedom of movement of Union workers is used as the yardstick. The general standard of the Directive is also critically assessed in light of international and regional human rights instruments as well as several of the international agreements concluded between the Community and third countries. The article concludes that the Directive in fact accords long-term resident migrant workers a right of equal treatment with nationals in very few areas of life, and that the legal status assigned to this group differs from that enjoyed by EU workers to such an extent that reflections on the exact meaning of ‘nearequality’ are rendered superfluous. The chapter of De Hart looks at the extent and way in which the European Court of Human Rights takes the interests of insider spouses (citizens or permanent residents) into account in Article 8 ECHR cases (right to family life). It uses Carens’ three moral principles for family reunification policies as an analysing tool for the evaluation of the Court’s first admission and expulsion cases, and looks at the underlying notions of gender and ethnicity. The author concludes that insiders’ interests play only a marginal role in the case law and offers several explanations. Although the Court has acknowledged that family reunification is about insiders, it has not taken the consequences of such a position into account. It does not look at the ties of the insider spouse to his or

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her country of citizenship or residence. It sees the relationships of insider women with migrant partners as a more serious threat to restrictive immigration policies than relationships of insider men with migrant women. Furthermore, the Court thinks of nation-states as closed units to which migrants may be admitted as an exception to the rule, and does not acknowledge that insiders develop family relations with outsiders either within or outside the nation-state. Wray considers in her chapter the treatment of ‘marriages of convenience’ or ‘sham’ or ‘bogus’ marriages’ in UK immigration law. The chapter begins by challenging notions of a binary divide between ‘genuine’ and ‘bogus’ marriages. It goes on to demonstrate that this ambiguity has been exploited by governments so as to exclude unwanted marriage migrants whose relationships may be entirely genuine. It considers four phases in their regulation, starting in 1969 and ending with the present day and finds that, in three of these, controls went well beyond the detection of bogus marriages into the prevention of unwanted marriage migration. All regulatory measures inevitably involve a degree of moral and cultural gate-keeping as decision-makers are obliged to measure the alleged sham marriage against the template of a ‘genuine’ relationship and government can utilise the sham marriage as a pretext for discriminating against marriages that do not comply with majority norms. However, the chapter argues that this is only one function of such measures. Just as often, the primary aim has been to enhance the ability to exclude or remove unwanted immigrants primarily because they are considered undesirable migrants for reasons that may not be connected to compliance with cultural norms.

Section 4: The Right to have Rights? The contribution of Brouwer investigates what has been left of the Tampere principle of ‘justice accessible to all’ in the field of EU immigration and asylum law, anno 2011. How accessible is justice to third-country nationals, considering not only the decision making in the field of migration law, but also considering the establishment of large-scale data bases and the exchange of personal information? Compared to the detailed procedural guarantees on effective remedies in the Directive 2004/38/EC on freedom of movement and the right of residence of EU citizens and family members, the applicable standards in the field of EU migration law are less clear with regard to the content, the scope, or possible sanctions of remedies. Procedural guarantees are left to the scrutiny of the national legislator and access to a judicial court is not always explicitly required. Positive developments are the inclusion of a right to

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appeal against a refusal of entry at the borders or visa applications and the general focus on informed-decision making in EU migration law. The extended possibility in the Lisbon Treaty for lower courts to submit preliminary questions to the CJEU with regard to the implementation of EU immigration and asylum law could be considered as a valuable step forward. The chapter of Reneman assesses the potential impact of EU law on national procedural rules, which determine the ability of the individual asylum applicant to exercise his/her right to an effective remedy. It is argued that the EU right to an effective remedy, which is reflected in Article 39 of the Asylum Procedures Directive and inspired by the views of several international bodies, in particular the European Court of Human Rights, includes a right of access to an effective remedy. From this right of access to an effective remedy, negative and positive obligations of the Member States may be derived. In this article several factors relating to the accessibility of the remedy required by Article 39 of the Asylum Procedures Directive are addressed: notification of the asylum decision and information on available remedies, time-limits for lodging the appeal, access to (free) legal assistance and the time between the decision on the application and expulsion. With the entry into force of the Treaty of Lisbon, the EU’s Charter of Fundamental Rights has become legally binding and is now the key source of human rights protection within the EU legal order. The book ends with a chapter by Peers examining the provisions of the Charter most relevant to immigration and asylum law in light of the case law of the Court of Justice on the Charter.

Introduction: Migration and Law in Europe Kees Groenendijk 1.  The First Decade of the New EU Migration Law (2000–2010) In the introduction to the first issue of European Journal of Migration and Law I summarized the relationship between migration and law in Europe in the second half of the twentieth century by pointing to three major developments: from discretion to law, from national to European law, and from integration to exclusion. Can the developments during the first decade of the twenty-first century be characterized by the same developments or is there a major difference with the previous decades? And what are the dilemmas that will have to be tackled in the years ahead? Those questions will be answered with the assistance of the sixteen contributions in this book. The editors have made a selection of the most relevant articles published in the Journal during its first decade with the aim of covering the major fields of European migration law. Some authors have updated their article published in our Journal years ago, others have written a new article for this book. The collection makes fascinating reading and provides a well-documented picture of the many and surprisingly quick developments in this field during the years 2000–2010. 2.  From Discretion to Law In the first issue of EJML we sketched the gradual recognition of migration law as a new field of law reflected and supported by its own institutions in the bar, the judiciary, the universities and in the legal literature of Member States. The appearance of EJML itself was an important contribution to that development. This development continued over the last ten years with new networks of practicing or academic lawyers being established within Member States (the Netzwerk Migrationsrecht1 in Germany, the Mailing List for Migration and Law in the UK2 and the informal network of migration law researchers in Spain3)   See www.netzwerk-migrationsrecht.akademie-rs.de.   See www.kent.ac.uk/law/migration/index.html. 3   This network was established in 2003, has members from universities in Barcelona, Bilbao, Cadiz, Girona, Huelva-Seville, Madrid, San Sebastián, Tarragona and Valencia. The network organizes annual conferences. 1 2

2  Kees Groenendijk

and at the European level (e.g. the ELENA network of asylum lawyers and the European chapter of the International Association of Refugee Law Judges). The older organizations, such as GISTI in France (founded in 1972),4 ILPA in the UK (1984) and ASGI in Italy (1991) continued their activities. The gradual extension of judicial control over decisions of immigration authorities continued in many Member States. In some Member States, such as Germany and France, this function was performed already for decades by the general courts or by regular administrative courts. In other states specialized immigration courts or quasi-judicial bodies were entrusted with this task (e.g. in Belgium, Sweden and the UK). The rapid Europeanization of immigration law, to be discussed below, had the side effect that all central rules were published rather than hidden in (semi-)secret administrative circulars or instructions that used to play a crucial role in national migration law. It would be difficult to disseminate EU instructions and have them applied by national authorities in 27 states without making them public in some way. The publication of the Visa Code with its many annexes in 2009 made public a lot of rules on visa that had never been published in several Member States. This publication also allowed for effective judicial control of administrative decision making as is illustrated by the contribution of Oosterom-Staples in this book. But the Code does not provide for the publication of the common ‘operational instructions’ on the implementation of the Code.5 Moreover, the Court of Justice observed that non-publication of an EU measure may prevent it being applied to a private individual. But the Court added that ‘a private individual is not thereby deprived of the power to invoke, in dealings with a public authority, the rights which such measure confer on him’.6 Publication in one way or another remains an essential condition for review by courts. The new EU migration and asylum measures contained provisions that were the result of prolonged discussions and negotiations in the Council bodies, but nevertheless stipulate directly applicable rights that can be invoked by migrants vis-à-vis the immigration authorities and before the courts of the

  L. Israël, ‘Aux origines du GISTI’, in: D. Lochak (ed.), Défendre la cause des étrangers en justice, Sous l’égide du GISTI, Paris: Dalloz 2009, p. 9–13. 5   Article 51 of Regulation 810/2009 of 13 July 2009 (Visa Code), OJ 2009 L 243/1. On the basis of this Article 51 the Commission made its Decision of 19 March 2010 establishing the Handbook for the processing of visa applications and the modification of issued visas, Decision C(2010) 1620 final. Most if not all of the 26 annexes to this Handbook are not available to the public; search with ‘C(2010) 1620’ in Google. 6   CJEU 29 September 1990, C-192/89 Sevince, ECR I-3401. The case concerned Decision 1/80 of the Association Council EEC-Turkey which was never published in the Official Journal. 4

Introduction: Migration and Law in Europe   3

Member States. The Court of Justice quickly aborted the idea prevalent among certain governments that the new migration directives were no real directives because they were said to leave a large room for discretion to the Member States. In the first two judgments on the Family Reunification Directive the Court made it clear that third-country nationals who fulfill the conditions of the directive have a subjective right to family reunification, that the national authorities in that case have no discretion (‘without being left a margin of appreciation’), that the general principles of Union law apply and that the implementation of the directive is subject to review by the national courts.7 It is hard to see why this would not apply to other similarly structured EU migration and asylum measures. The difference is well illustrated by the analysis in the contribution of De Hart to this book of the case law of the ECrtHR on Article 8 ECHR that leaves the State Parties a considerable margin of appreciation and no choice of domicile. The Family Reunification Directive goes clearly beyond the minimum level of the ECHR by granting the right to admission in a Member State if the conditions set by the directive are fulfilled. The Europeanization of migration law extended control by lawyers and courts to corners of migration law, where the behavior of national authorities had traditionally been excluded from external scrutiny or judicial review and discretion in many Member States was still wide: the issue of visa, border control and internal police controls behind internal or external borders. The gradual reduction of discretion with regard to EU nationals and their family members at the borders and in the consulates of Member States by the case law of the Court interpreting the relevance of free movement rules for border control and the issue of visa as described by Tomkin in his contribution, is reproduced in new measures on third-country nationals. The judgment of the Court in the Melki case is but a first example of this development.8 In this judgment the Court specified when police checks inside a Member States amount to border checks. The chapter by Oosterom-Staples reviews the relevant case law at the EU level and in a Member State. 2.1.  Enlargement, Lisbon Treaty and the EU Charter of Fundamental Rights The territorial scope of the development in previous years was extended considerably with the accession of 12 Member States in 2004 and 2007. That the UK and Ireland are bound by part of the new measures only and Denmark is

  CJEU 27 June 2006, C-540/03 Parliament v. Council, ECR I-5769 par. 61, 105 and 106 and CJEU 4 March 2010, C-578/08 Chakroun, not yet published in the ECR, par 41. 8   CJEU 22 June 2010, C-188/10 Melki, not yet reported in ECR. 7

4  Kees Groenendijk

not legally bound at all, is a (temporary) limitation of this effect. But the case law of the Court will probably prove to be relevant indirectly in those three Member States as well. Denmark opened the door in the Lisbon Treaty by allowing itself a come back from its total opt-out obtained in the Treaty of Amsterdam.9 The Treaty of Lisbon enhanced the legal element of migration law in two other ways: by extending the competence to refer cases on the new migration and asylum measures to the Court of Justice to all national judges and by granting the EU Charter of Fundamental Rights the status of binding primary EU law. Both changes will enhance the role of the Court of Justice too. On 1 January 2011, thirteen months after the Lisbon Treaty entered into force eleven cases concerning the new EU measures on migration and asylum of third-country nationals were pending before the Court. Two of them are infringement cases started by the Commission concerning the incorrect application of directives, four cases were referred by the highest national courts, which before Lisbon had the exclusive competence to make reference to Luxembourg, and in five cases other national courts used their new competence to refer a preliminary question to the Court. The quick increase of the role of the Court of Justice in this field is nicely illustrated by a remark of Halleskov Storgaard in her analysis of Directive 2003/109 on the status of long-term residents. When she finalized her contribution to this book no cases on the interpretation of that directive had reached the Court yet. Meanwhile, three cases concerning that directive are pending in Luxembourg, one infringement case and two references by national courts.10 In their Joint Communication of 17 January 2011 the Presidents of both European Courts note that the EU Charter of Fundamental rights now has ‘the status of primary law of the EU’ and that the CJEU since 1 December 2009 has been citing the Charter ‘in some thirty judgments’. The Presidents conclude: ‘Thus the Charter has become the reference text and the starting point for the CJEU’s assessment of fundamental rights which that legal instrument recognises.’11 The content of the Charter and its relation to the ECHR is discussed extensively in the chapter of Peers. Its contribution to the legal character of migration law lies in the explicit recognition that the 27 (rich)  Article 8 and the fourth preamble of Protocol No. 22 to the Lisbon Treaty have opened this door. 10  Case C-508/10 Commission v. Netherlands, case C-502/10 M. Singh and case C-571/10 Servet. 11   Joint communication from Presidents Costa and Skouris, press release no. 75 issued by the Registrar of the ECrtHR on 27 January 2011, www.echr.coe.int, search in HUDOC under Press releases and General.  9

Introduction: Migration and Law in Europe   5

Member States in the Charter and in secondary EU law may grant funda­ mental rights on a higher level than the minimum level applicable for all 47 Council of Europe states. Moreover, the Charter grants new rights not included in the ECHR which will have special significance in this area. Examples are the right to asylum (Article 18 of the Charter), the rights of the child (Article 24), and the extension of the right to an effective remedy in Article 47 against all decisions of national authorities applying EU migration measures. The Maaoui judgment of the ECrtHR, that Article 6 ECHR does not apply in immigration and asylum cases, is no longer relevant for the application of the EU migration and asylum measures. In EU Member States the Strasbourg case law on what constitutes an effective remedy as guaranteed by Article 6 and Article 13 ECHR will apply on the basis of Article 47 of the Charter in all cases covered by EU law. The consequences of this extension of judicial protection are nicely illustrated in the chapters in this book on remedies in migration cases by Brouwer and the chapter on remedies in asylum cases by Reneman. 2.2.  No Separate EU Immigration Court and the Role of NGOs Two other developments have further strengthened the character of migration law as law rather than as a collection of policy measures. Firstly, no specialized immigration court or tribunal has been developed within the Court in Luxembourg. During the negotiations on the Amsterdam Treaty, the need for a specialized court or chamber with the CJEU was discussed, especially by those governments that feared that Luxembourg would be flooded by immigration cases, would become a fourth instance asylum court or would be unable to deal with urgent cases swiftly. So far, none of those fears have materialized. Almost 12 years after the Amsterdam Treaty entered into force, less than ten asylum cases have reached Luxembourg, half of them in 2010. In 2009 and 2010 the Court managed to decide all six cases, where it was convinced of the urgency of the case by the referring national court, within two or three months. Five cases related to international child abduction (Deticek, Povse, McB, Zarraga and Mercredi) and the sixth one to immigration d ­ etention 12 The absence of a specialized court has the effect that immigration (Kadzoev). and asylum cases are dealt with on the basis of the general procedural and material standards and with the same care as other cases. So far EU migration

  CJEU 30 November 2009, C-357/09 Kadzoev, CJEU 23 December 2009, C-403/09 Deticek, CJEU 1 July 2010, C-211/10 Povse, CJEU 2 October 2010, C-400/10 McB, CJEU 22 December 2010, C-497/10 Zarraga, and CJEU 22 December 2010, C-497/10 Mercredi.

12

6  Kees Groenendijk

law has not developed as a separate domain where deviation from general rules and principles is accepted as self-evident or normal. Secondly, NGO’s concerned with protecting the rights of immigrants have organized themselves on the national level in Member States and in different forms of cooperation on the European level. The efficient exchange of information between refugee organizations and their lawyers has contributed to the rapid increase of the instrument of interim measures in asylum cases by the ECrtHR in recent years. In 2010 the total number of interim measures requested was 3,680 and 1,440 such measures were granted that year, compared with 136 requests and 24 interim measures granted in 2000. The other important role of NGO’s in migration cases is as producers of reliable information on the legal and actual situation of immigrants in Member States and in countries outside the EU. The judgment of the ECrtHR in the case of M.S.S. against Belgium and Greece13 is a good example of the essential role of NGO’s and Council of Europe bodies as finders of facts on which the court can rely in deciding individual cases. 3.  From National to European Law In the editorial in the first issue we mentioned the development of intergovernmental cooperation in immigration matters during the first post-War decades in the Nordic Union, the Benelux, the OECD, the Council of Europe, the Schengen cooperation and the Ad Hoc Group Immigration. Until the Maastricht Treaty of 1992, that provided for making Community law rules on some aspects of visa policy, the only supranational rules on migration were the rules on free movement of EU nationals and their family members. The Court in Strasbourg started to play its role in immigration matters in 1985 only, hence 35 years after the ECHR was signed. 3.1.  Loss of Sovereignty I: Free Movement of Union Citizens Since 1961 a first set of Community law rules on migration has been developed concerning the free movement of EU nationals (workers, self-established persons, students, pensioners and other not economically active persons) and their family members. The basic rules for these categories were adopted in 1968 with some more secondary legislation in the early 1970s and early 1990s for specific groups and the creation of the Union citizenship in the Maastricht

  ECrtHR 21 January 2011. See also the chapter of Vedsted-Hansen.

13

Introduction: Migration and Law in Europe   7

Treaty in 1992. In the three decades after 1970 those rules were primarily developed and specified by the case law of the Court of Justice. The secondary legislation on free movement and the case law of the Court were re-codified and somewhat extended in Directive 2004/38 on the free movement of citizens of the Union and their family members. That Directive was adopted the day before the Enlargement of 2004 to avoid that the ten new Member States would have a say. Considering the sharp criticism in certain Member States against several judgments of the Court in free movement cases, at the time they were pronounced by the Court, it was a bit of a surprise that all Member States agreed with the codification of those judgments in 2004. Probably the accusations of judicial activism faded away after serious consideration of the content and the effects of the judgments. Most disputes on this set of rules both before and after the entry into force of the Directive related to the fear that access to social assistance and study grants will trigger migration within the Union in order to access those benefits. The fear that students and beggars from other Member States will become a burden on ‘our social honey pot’, without having contributed to the system, has been present in certain Member States for decades. In his contribution Verschueren explains the balance that has been struck in Directive 2004/38, Regulation 883/2004 on social security and the case law of the Court between free movement for Union citizens who are not yet or no longer workers across borders and the solidarity as basis of the social systems within each Member State. This first set of rules covers the legal status of roughly 25–30% of the migrants in the EU. But the share of the non-national population of Mem­ ber  States, covered by free movement rules, varies considerably. In certain Member States EU migrants account for half or more of the non-national population: approximately 50% in Hungary, Malta, Slovakia and Sweden, 65% in Belgium, Ireland and Cyprus and even 85% in Luxembourg.14 The rules on free movement of EU nationals leave the authorities of the Member States hardly any discretion. It took them decades to get used to that idea. In recent years some Member States campaigned to regain some of their lost sovereignty regarding this group of migrants, especially with regard to admission of third-country family members in reaction to the Metock judgment15, and to regain more room for expulsion of Union citizens on public order grounds. Ironically, on both issues, those Member States agreed to better protection of   Calculated on the basis of data on 2008 in Eurostat, Statistics in focus, no. 94/2009.   CJEU 25 July 2008, C-127/08 Metock, ECR I-6241. In this judgment the Court held that Directive 2004/38 did not allow for a restriction of the free movement of third-country family members to those family members who previously have been admitted on the basis of the national law of another Member State.

14 15

8  Kees Groenendijk

migrants and thus less national discretion with the adoption of the Directive in 2004. 3.2.  Loss of Sovereignty II: Immigration and Asylum of Third Country Nationals When signing the Amsterdam Treaty in 1997 the Member States agreed to extend the competence of the EU to make binding rules in almost all areas of migration and asylum law. At the same time the intergovernmental rules on migration agreed by the Schengen states between 1985 and 1997, the Schengen acquis, were integrated in Community law. This resulted in a legislative boom. In the nine years after the Amsterdam Treaty entered into force (1999), almost fifty directives, regulations and decisions were adopted by the Council of Ministers on the basis of the Articles 62 and 63 of the former EC Treaty.16 This produced a patch work of measures with common EU rules on visa, border control, entry, admission, settlement, detention, expulsion and re-entry ban. This second set of rules regulates the position of the other 70% of the migrants in Europe, those coming from third countries, i.e. countries outside the EU, Norway, Iceland and Switzerland. I will deal below with the privileged position of a large sub-section (20%) of this second group, Turkish nationals with rights under the Association Agreement. The result of this legislative activity is that there are now EU rules on the admission and the status of all major categories of migrants: family migration, asylum seekers, refugees, students, long-term residents. The main exception is admission for employment. Germany and other Member States so far successfully resisted the adoption of EU rules on admission of thirdcountry nationals for the purpose of employment. In Lisbon Germany succeeded in inserting an exception in Article 79(5) TFEU confirming the exclusive competence of the Member States to ‘determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed’. The proposal for a directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities, introduced by the Commission in 200117 had to be withdrawn three years later for lack of support among Member States. But in 2005 all Member States agreed to the Directive on admission of researchers18 and to the Blue Card   For the current competence for EU law making in the area of immigration and asylum see Articles 77-79 TFEU. 17  COM(2001)386, OJ 2001 C 332E/248. 18  Directive 2005/71 of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research, OJ 2004 L 289/15. 16

Introduction: Migration and Law in Europe   9

directive on the admission of highly qualified workers in 2009.19 By the end of 2010 agreement on the proposal for the Framework Directive on labor migration had been reached in the Council, but not yet in the Parliament. This proposal provides  for a single document (residence and work permit) for admitted third-country national workers, but it leaves the Member States free not to admit any such worker.20 Proposals for directives on seasonal labor and on intra-company transfers are on the table since mid 2010.21 Moreover, the access to employment of third-country nationals admitted for other purposes (family members, refugees, students, long-term residents, etc.) has been regulated in the directive on those categories that are already in force.22 Most new EU migration and asylum directives or regulations in provisions with direct effect grant residence rights or other rights to third-country nationals, who fulfill the conditions specified in those instruments. Other provisions in those new EU rules do leave Member States some room to apply elements of their national law. Some directives, e.g. the Asylum Proce­ dures  Directive, allow Member States a lot of freedom to continue applying  national  rules or policies. Most new directives explicitly allow Member States to adopt or maintain more liberal national rules. There is a tendency, especially in the pre-2004 Member States, to bring their national law in line with the EU (minimum) standards, by making their national standards less liberal. The EU instruments do not allow Member States to be less liberal than the EU rules. Ireland and the UK are bound by most of the EU asylum instruments, but opted out of the directives on legal migration, visa and border control. Denmark is only bound to the measures that built on the Schengen acquis. Consequently, during the first decade of this century 24 EU Member States, intentionally or not, assisted over a transfer to the EU of most law making competences concerning one of the central functions of the nation state: admission and expulsion of non-citizens. Most civil servants, politicians, lawyers and judges in the Member States probably have not yet realized the full extent of the loss of discretion and sovereignty in this area of law.

  Directive 2009/50 of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, OJ 2009 L 155/17. 20   COM(2007) 638. 21   COM(2010) 379 and COM(2010) 378 of 13 July 2010. 22  K. Groenendijk, ‘Access of Third-Country Nationals to Employment under the New EC Migration Law’, in: F. Julien-Laferrière, H. Labayle and O. Edström (eds), The European Immigration and Asylum Policy: Critical Assessment Five Years After the Amsterdam Treaty, Brussels: Bruylant 2004, p. 141-174. 19

10  Kees Groenendijk

3.3.  Why this Transfer of Sovereignty? Why did Member States agree within a few years to this Europeanization of their migration law and the related transfer of sovereignty? In the official EU policy documents, in the national policy debates and among scholars who recycle those policy statements, the first and main explanation is the establishment of the Internal Market and the related abolishment of controls at the internal borders in the EU. I never held that argument to be convincing. Both within the Nordic Union and the Benelux controls at the internal borders were abolished and the states concerned for decades lived happily without agreement on common rules on admission or expulsion of nationals of other countries. There are five other grounds that may explain this surprisingly quick Europeanization of migration law. Firstly, it has become clear that policy measures in the field of migration in one Member State may have immediate effects in other Member States. When Germany decided in 1992 to make its asylum law more restrictive, the numbers of asylum applications in all five neighboring countries increased considerably the next year. When Spain decided to have another large scale regularization campaign in 2005, politicians in Northern Member States immediately complained about perceived migration consequences for their countries. One of the reasons why nationals of Ukraine today are the third largest group of third-country nationals in Portugal is that a few years ago the German consulate in Kiev issued large numbers of Schengen visa to Ukraine citizens. When Greece is unable to handle large numbers of asylum applications and unable to accommodate asylum seekers in accordance with the minimum rules of the Reception Conditions Directive, other Member States can no longer transfer asylum seekers who crossed the EU external border in Greece, to that Member State. Secondly, Member States have come to the conclusion that effective action aimed at regulating migration, both at the external border and in the countries of origin of the migrants, requires common action. Many of the operations coordinated by Frontex and the conclusion of readmission agreements by the EU with third-countries reflect this idea. The third explanation is that the national civil servants during the negotiations on these new EU instruments were focused on exporting or defending their own national immigration law. The head of the German delegation during the negotiations on the Family Reunification Directive implicitly ­ confirmed this attitude in an article published shortly after the adoption of the directive. German law would have to be amended on a few minor points

Introduction: Migration and Law in Europe   11

only in order to comply with the directive. Apparently, he considered this an indication of successful negotiation.23 Moreover, most national officials, who were negotiating in Brussels, were immigration law experts, not necessarily having expertise in EU law. They underestimated the far reaching effects of the fact that migration law is now part and parcel of EU law. Possibly, they also underestimated the role of the Court of Justice, who as a supranational judge will give binding interpretations of the new instruments. Those instructions will be taken seriously by national judges, if not immediately then in the long run. Fourthly, the decisions were made in a prolonged process of negotiations over a range of separate proposals by the Commission extending over ten years from 2000. The participants for the Member States in the negotiations varied over time, either due to the subject of the proposal or because the civil servant got another job. Thus, very few participants or even outside observers had an overview over the whole process and the combined effect of this step by step patchwork decision making. The fifth and final explanation applies to most EU law making and, generally, to the magnet function of the EU as a common project of ever more cooperation between on paper still sovereign states: the perceived advantages of the common rules are concrete, concentrated and highly visible, the costs or negative effects are often distributed over many persons or organizations and, thus, far less visible. 4.  From Integration to Exclusion In the first issue of the Journal we pointed to a fundamental change in the aims of the migration law agreed in European organizations during the first decades after 1945 and the rules adopted in the Union during the 1990s. The rules on migration adopted within the OECD, the Council of Europe, the Nordic Union, the Benelux and the EEC between 1947 and 1977 provided for a stable legal and social position of migrants in order to support their integration in the country of residence. Most of those rules applied to migrants from other European states participating in the cooperation. Reciprocity was a guiding principle at that time.   C. Hauschild, ‘Neues europäisches Einwanderungsrecht: Das Recht auf Familienzusammen­ führung’, Zeitschrift für Ausländerrecht und Ausländerpolitik 2003, p. 266-273. He also stated that more than thirty provisions in the Family Reunification Directive leave room for discretion by Member States.

23

12  Kees Groenendijk

4.1.  Focus of Intergovernmental Cooperation: More on Exclusion than Integration With the start of the Schengen cooperation in 1985 the perspective of Euro­pean law making in this field became more mixed. Next to rules that reinforced the status of European migrants or all lawfully residing migrants irrespective of their nationality, new sets of rules were adopted that primarily were aimed at preventing undesired migrants and especially those from outside the EU from entering the Member States. This perspective has been present in the earlier periods too, but it did not prevail the law making, neither in quantitative nor in qualitative terms. The intergovernmental cooperation within the Schengen group and between the EU Member States before and after Maastricht was primarily directed at preventing illegal immigration, reducing numbers of asylum seekers, introducing visa obligations, reinforcing controls at borders and expulsion of undocumented migrants. The two resolution adopted by the EU Council of Ministers on family reunification (1993) and on long-term resident third-country nationals (1996), reflecting the integration perspective, were legally non-binding and had little if any effect in practice. Considering the number of measures adopted regarding visa, irregular migrants, expulsion and border control the primacy of that perspective continued after 1999.24 In his analysis of the content of those measures Cholewinski points to another reflection of this perspective: in the rules adopted, the focus on deterrence of irregular migrants prevails over attention for rights of undocumented migrants, voluntary departure or regularization. Victims of trafficking are the exception. With regard to visa, the perspective during the ten years after 2000 in quantitative terms tended to be somewhat more often towards liberalization than towards restriction. In the EU Visa Regulation the visa obligation was introduced for nationals of Bolivia and Ecuador and for British Overseas Citizens and British Subjects without the right to abode in the UK, thus transferring racial elements in British nationality law in EU visa legislation. The visa obligation was lifted for nationals of Rumania (before its accession to the EU), nationals of five states in the Western Balkan (Albania, Bosnia-Herzegovina, Macedonia, Montenegro and Serbia, all potential candidates for accession),

  The overview of migration and asylum measures adopted after the Amsterdam Treaty published by S. Peers in the ILPA European Update of September 2010 mentions 11 measures on legal migration, 10 on asylum, 25 on border and visa, 21 on irregular migration and 8 readmission agreements.

24

Introduction: Migration and Law in Europe   13

nationals of six small island states, all former colonies of the UK, and nationals of Taiwan. The EU concluded a series of agreements on visa facilitation with neighboring states, the candidate Member State Turkey being a notorious exception. 4.2.  Exclusive Integration Policy The simple number of measures adopted is an indication of the interests of those preparing and adopting the measures. Some of those measures, however, will have far more effect in practice than others. Two measures on legal migration, both adopted in 2003, Directive 2003/86 on the right to family reunification and Directive 2003/109 on the status of long-term resident thirdcountry nationals25 eventually will have large effects in practice, considering their personal scope and the rights granting in those directives. On the initiative of Austria, Germany and the Netherlands, after strong opposition from other Member States, optional clauses were introduced in both directives, allowing Member States to require family migrants or those applying for the long-term resident status to comply with integration measures or integration conditions.26 Those provisions are the expression of a new policy in some Member States that after first offering language courses to immigrants, then making participation in those courses mandatory, finally introduced uniform language and integration tests as a new instrument of immigration control. Language and integration tests in that policy are used as an instrument of reduction, selection and exclusion of immigrants. The aim or the effect of those ‘integration’ policies is to reduce family migration (and in Germany immigration of co-ethnics) and keeping long-term resident immigrants from outside the EU from acquiring permanent residence right or the nationality of the country of residence. In 1999 only Germany had a language requirement for the national permanent residence permit. At the time of the transposition of Directive 2003/109 a language or integration requirement has been introduced in the national legislation of thirteen other Member States. In the Netherlands the number of applicants for the long-term resident status diminished considerably after passing the integration exam became mandatory in January 2010. In Denmark, not bound by the directive, a sharp increase of the refusal rate of the national permanent residence permit occurred after the language requirements had been raised in May 2010. In the Netherlands the

  OJ 2003 L 251/12 and OJ 2004 L 16/44.   Article 4(1) final sentence and Article 7(2) of Directive 2003/86 and Article 5(3) and Article 15(2) of Directive 2003/109.

25 26

14  Kees Groenendijk

introduction of a uniform language and integration exam in 2003 resulted in a 50% reduction of the number of naturalization in subsequent years. Similar developments are visible in other Member States.27 This use of integration policy instruments for controlling and selecting immigrants during the first decade of this century in several Member States coincided with a transfer of the competence for integration policy from Minis­ tries of Social or Cultural Affairs to the Ministry of Interior or other ministries responsible for immigration control. At the EU level integration of immigrants used to be the competence of the Directorate-General (DG) Employ­ ment, responsible for free movement rules. With the establishment of a DG Justice, Liberty and Security competence for integration of third-country nationals moved to this new body. After the split of that body in DG Justice and DG Home Affairs on 1 July 2010, the latter is responsible for integration of migrants from outside the EU. Integration of EU immigrants remained within the competence of DG Employment and DG Justice. Would the actual integration of immigrants really depend to such extent on their nationality that the present division of competences and the related different perspectives on integration is warranted at the EU level? Or is this division merely the expression of the lack of a clear integration policy in the EU? 5.  The Years Ahead Three major dilemmas will continue to influence the development of EU migration law in the years ahead: (1) the tension between the wish to limit the loss of sovereignty and the declared need for more common rules, (2) the tension between two often conflicting aims, controlling migration and respecting human rights of migrants, and (3) the role of the equality principle in the integration of immigrants. In the last part of this introduction I will make some tentative propositions with regard to each of these dilemmas. 5.1.  Loss of Sovereignty versus Need for Common Rules The unexpected and unpleasant surprise in many Member States about the loss of sovereignty by the adoption of the EU migration and asylum directives of the last decade, will translate in a defensive attitude toward proposals for new common rules that will result in a further reduction of the room for

  R. van Oers, E. Ersbøll and Dora Kostakopoulou (eds), A Re-definition of Belonging? Language and Integration Tests in Europe, Leiden: Brill 2010.

27

Introduction: Migration and Law in Europe   15

national policies. The tendency to regain lost territory, rather than giving up more ground, will be reinforced once the still nascent case law of the CJEU in this area will develop and illustrate the extent of the loss. The reduction of ambitions regarding the Common European Asylum System that arises from the comparison of the programmes adopted by the European Council in Tampere (1999), in The Hague (2004) and in Stockholm (2009) in the contribution by Carrera, illustrates this dilemma. External pressures and internal situation in Member States, such as the disastrous conditions for the reception of asylum seekers in some Member States may ask for quick action and new legislation. The reaction of Member States to the four proposals of the Commission for amendments of current EU asylum measures, among them the proposal to amend the Dublin II Regulation and the ECrtHR judgment in M.S.S. versus Belgium and Greece provide another example of this dilemma. This dilemma will probably arise also with regard to nationality law, an area where the EU has no law making competence. The Rottmann judgment28 on how EU law limits the freedom of the Member States to make and apply national rules on the loss of nationality, the conflict between Hungary and Slovakia on dual nationality, the policy of Rumania granting its nationality to ethnic Rumanians in Moldova and the large scale migration of Dutch nationals of Somali origin to the UK all illustrate that the EU and its Member States will have to think about certain common rules regarding the acquisition and loss of the nationality of the Member States, since it implies acquisition and loss of Union citizenship and the rights attached to that status having effects in other Member States. In a common contribution in preparation of the European Council in Tampere in 1999 France, Germany and the UK stated that ‘it is desirable that exchanges take place between Member States on the way in which they define their nationality, on procedures for acquiring nationality and on access to citizenship’.29 A common approach does not necessarily imply binding EU legislation. Rather it refers to what in the EU jargon is called the ‘open method of coordination’, a practice of prolonged consultation with the aim to arrive at a consensus on reasonable common rules that are then adopted by the states participating in the consultation in their national law. This practice has been successfully applied in the Nordic Union for decades.

  CJEU 2 March 2010, C- 135/08 Rottmann, not yet published in ECR, par. 52 and 53.   Undated paper circulated at the JHA Council of 4 October 1999; see also the preparatory document of the working group suggesting that measures improving the legal situation of lawfully resident third country nationals and their families could ‘lead to a common approach for access to nationality and citizenship’, Council document 10015/99 of 9 July 1999.

28 29

16  Kees Groenendijk

5.2.  A New Agency instead of Common Rules A central dilemma for Member States in the years ahead will be that on the one hand politicians like to make concrete policy statements and set deadlines for the adoption of new EU rules, whilst on the other hand some Member States do not want more detailed rules that further restrict their remaining discretion. They rather want some of their lost sovereignty back. The Common European Asylum System is a good example. According to the Hague Pro­ gramme agreed by the European Council in 2004 the system with uniform asylum procedures and a common asylum status had to be completed in 2012. This deadline was agreed at the time that some of the first set of EU asylum measures had not yet been adopted by the Council and most of the adopted rules had not yet been implemented by Member States (see the contributions by Vedsted-Hansen and Carrera). In 2009 the Commission presented proposals for modest amendments of elements of four asylum instruments adopted between 2002 and 2005. After more than a year of negotiations the Council put two proposals on ice and on the two others no agreement is foreseen on the short term either. One of the solutions in the EU for this dilemma is the establishment of a new agency. In 2011 the European Asylum Support Office opened its headquarters in Malta: administrative cooperation as a substitute for new common rules. We should not forget that the cooperation between the five original Schengen countries was presented as a simple agreement between the immigration and police authorities of the five states on the coordination of their activities. As a consequence of this low key administrative cooperation approach, the 1985 Schengen Agreement in most of the five original Schengen states entered into force without involvement of the national parliament. 5.3.  Controlling Migration and Respecting Human Rights of Migrants The tension between the wish to control or ‘manage’ migration and, at the same time, respect the central values codified in the constitutions of Member States and in international Human Rights instruments has become gradually clear with the development by the Strasbourg Court of its case law on the Articles 3, 5, 6, 8, 13 and 14 ECHR in immigration and asylum cases. The transformation of the legal character of the EU Charter of Fundamental Rights from solemn proclamation in binding treaty law in 2009 has made this tension only more acute. The effects will be especially felt in Member States that have no constitution, no constitutional guarantee of rights that are especially relevant for migrants, such as the right to asylum, the right to family life or the rights of children, or do not have an institutionalized check of the constitutionality of laws or measures at the national level.

Introduction: Migration and Law in Europe   17

A related question of special interest to lawyers is how the Court of Justice, when interpreting the EU migration and asylum acquis, will continue to integrate the norms adopted by Member States within the Council of Europe or at the UN level. With regard to the provisions of instruments ratified by all Member States or explicitly mentioned in primary or secondary EU law, the strategy of the Court is clear. The Court in migration cases regularly refers to the case law of the ECrtHR, because the ECHR sets a minimum standard for the Court of Justice when interpreting EU migration law and for Member States when applying EU migration law in individual cases. In some judgments the Court made reference to a treaty that has been ratified by part of the Member States only, e.g. the reference to the European Convention on nationality in the Rottmann judgment.30 The position of the Court in Luxembourg with regard to the relevance of the case law of international bodies, such as the UN Human Rights Committee or the CAT Committee, established to monitor the application and rule on individual complaints about the application of human rights treaties, is less clear. Interpretation of the Qualification Directive 2004/83 will inevitably result in certain cases in indirect interpretation of provisions of the Refugee Convention, if only because the directive and Article 78(1) TFEU make explicit reference to that convention. The Court will have to find a way of taking due regard to the position of UNHCR as the official supervisor of the application of that convention. 5.4.  The Equality Principle and the Integration of Immigrants In the first post-War decades the reciprocity principle played an important role in European rules on migration. Within the EEC the idea of direct reciprocity was replaced by the principle of non-discrimination. Equal treatment, as explained above, from the very beginning was one of the central elements of Community law regarding the integration of migrants from other Member States. 5.5.  Are Union Citizens still Aliens? In the fifty years since Regulation No. 15, the first EEC instrument on free movement of workers, was adopted in 1961,31 EU free movement law has developed and the position of Union citizens who have moved from one Member State to another has been gradually assimilated to that of the nationals of the Member State of residence. Of course, some differences persist:   See fn 28 supra.   Regulation No. 15 of 12 June 1961, OJ of 26 August 1961.

30 31

18  Kees Groenendijk

EU nationals have full political rights in their own state only and in e­ xceptional cases they still can be expelled to that Member State. But the question arises whether free movement rights will be correctly and fully applied when transposed in the national immigration law of Member States. National immigration law in most Member States is primarily about competences of immigration authorities to refuse entry and residence to non-nationals, how to regulate and control non-national residents and how to reduce their numbers, in sum about immigrant obligations rather than about immigrant rights. The question is whether the EU rules on free movement can be effectively implemented in national immigration law or should be implemented in separate legislation dealing with EU nationals and their family members only, such as the German Freizügigkeitsgesetz/EU. Such separate national legislation could also deal with the issue of reverse discrimination – can EU nationals who have not used their right to free movement be subjected to less favorable national rules regarding family reunification than migrants from other EU Member States? – as long as that issue has not been settled in Brussels, Luxembourg or Strasbourg. In several contributions in this book the question is discussed whether differences in treatment between EU nationals and certain categories of thirdcountry nationals are still permitted and if so, how they can be justified. In my view the answers to such questions should be guided by the idea that equal treatment of lawful immigrants supports their integration, irrespective of the nationality of the immigrant. Differences in treatment may, just as between EU migrants and the nationals of the country of residence, be justified by other interests considered more important. But such differences in treatment under EU law can never be taken for granted, they always have to be properly justified. 5.6.  EU Nationals and Turkish Nationals under the Association Agreement In his elegant contribution to this book Martin discusses on the basis of the Court’s case law two questions: firstly, to what extent Turkish nationals benefit from a privileged position compared to other third-country nationals and, secondly, whether Turkish nationals enjoy a privileged position even when compared to EU workers. His answer to the first question is that the Court has considered the privileged position of Turkish nationals and their family members to be justified by the concrete rights granted in the Association Agreement, the Protocol and the Decisions of the Association Council, the standstill clauses and the aim of the Agreement to progressively secure freedom of movement. Moreover, Turkish nationals may, next to the rights granted by the association rules, derive rights from other instruments, such as the Refugee Convention or the Student’s Directive 2004/114.

Introduction: Migration and Law in Europe   19

In the answer to his second question Martin is more critical of the Court’s case law, interpreting Article 59 Protocol EEC-Turkey with regard to children of Turkish workers. Article 59 provides that Turkey shall not receive more favorably treatment than which Member States grant to one another pursuant to the EEC Treaty. He suggests that the comparison of the position of a Turkish child of a Turkish worker with the EU child of an EU worker is mistaken. The correct comparator should be the non-EU child of an EU worker. That nonEU child does not have a right to return to the Member State that the EU child has. This proposition does not convince me for two reasons. The suggested comparator is an exceptional situation: most children of EU workers will be EU nationals as well. Moreover, many non-EU children, after having lived for five years (Article 7 of Decision 1/80 mentions a five years period too) with their EU parent in another Member State acquire a permanent resident right under Article 16 of Directive 2004/38, granting them a right to return to that state after an absence of less than two years of the EU. That is a far better position than the Turkish children who have no right to return under the Association rule and for re-entry depend completely on the national law of the Member State concerned. Another interesting question is whether the general non-discrimination clause of Article 9 of the Association Agreement relates to differences in treatment (within the scope of that agreement) between Turkish nationals and EU migrants or between Turkish nationals and nationals of the Member State where the Turkish nationals resides, or both. Article 59 deals with the first comparison. The wording of Article 9 is almost identical to that of Article 18(1) TFEU, the current successor of Article 7 EEC Treaty referred to in Article 9 Association Agreement. Hence, I would suggest that Article 9 covers both comparisons. 5.7.  EU Nationals and Third Country Nationals: Causes and Limits of Analogous Interpretation The tendency of the Court of Justice to use rules and case law regarding free movement of EU nationals as a model when interpreting rules on third country nationals is signaled by Martin with regard to the position of Turkish nationals and by Halleskov with regard to the Chakroun judgment on the Family Reunification Directive. In that judgment the Court explicitly refers to its judgments on third-country family members of EU migrants in Eind and Metock. The Court uses the same scheme of a right to family reunification and a restrictive interpretation of the conditions and implicitly paraphrases the rule of Article 8(4) of Directive 2004/38 when holding that Member States may not use a fixed amount income requirement. Halleskov suggests that the

20  Kees Groenendijk

Court may use the rules on free movement when interpreting Directive 2003/109 on the status of long-term resident third-country nationals as well. How can this tendency of the Court to use analogous interpretation be explained? I see five possible explanations. Apparently, the Court over the years has perceived as one of its task to bring coherence in EU law: coherence between different fields of EU law and coherence within one field.32 Secondly, this perception of its task also implies a tendency to reduce rather than increase the complexity of EU law. The current EU migration law results from a legislative process that has been inevitably patch-work. Member States would never have arrived at a consensus on a proposal for an overall EU Immigration Code. The mentioning of the idea of such a Code by the Commission in 2009 immediately became a bone of contention (see the contribution of Carrera). Thirdly, the European Council in Tampere gave the political instruction to make rules granting lawfully resident third-country nationals a status ‘comparable with’ or ‘as near as possible to’ the status of Union citizens. This instruction was repeated by the Council of Ministers in the preambles of the directives on family reunification and on long-term residents. Fourthly, both the rules on free movement of EU workers (since 1961) and those for Turkish migrants (since 1980) aimed at the integration of the migrants in the society of their country of residence. The two major directives on legal migrants and the Blue card directive explicitly mention the same purpose (integration) in the preambles. Finally, if the Court would not interpret per analogy, it would have to formulate new rules itself rather than applying existing rules to new situations. It would then probably run an even greater risk of being accused of improper judicial activism. 5.8.  Arguments against Analogous Interpretation Generally, in academic literature and in judgments of national courts four arguments against analogous interpretation or using the rules on free movement as a model are mentioned. Since those arguments will probably return in many debates on EU migration law in the years ahead, I will finish this introduction with a few words on each of them. The first argument is that the legal position of third-country nationals is fundamentally different form the status of EU nationals. The legal status of EU   For recent examples of coherence between different fields of EU law see CJEU 9 December 2010, C-300/09 Toprak, point 58 and 59 (on the standstill clause) and CJEU 22 December 2010, C-303/08 M. Bozkurt, point 47 (on misuse of EU law). For coherence within one field (EU migration law) see CJEU 25 July 2008, C-127/08 Metock, point 69.

32

Introduction: Migration and Law in Europe   21

nationals is regulated in more detail and the fundamental rules are provided in the primary Union law (TFEU). Primary Union law only provides the competence to make rules on the status of third-country nationals. Thus, the Union citizen cannot be a useful or correct comparator or model. I hold this petition prinicipii for problematic on several grounds. Both categories are migrants. The longer their lawful residence in the Member State lasts, the more difficult it is to justify differences in treatment on the basis of nationality only. Such difference will have to be justified under Article 21(2) of the EU Charter. In his contribution Peers reminds us that, considering the Strasbourg case law, differences in treatment solely on the ground of nationality require ‘very weighty reasons’.33 This will make it hard for the Court of Justice to hold that Article 21(2) does not apply to third-country nationals. The argument of incomparable situations is particularly problematic where the EU legislator in the text or the preambles of the measures explicitly refers to EU nationals as comparator. So far, the Court of Justice has never applied the similarly worded Article 18(1) TFEU, the former Article 12 EC Treaty, to third-country nationals. It only protects EU nationals. If Article 21(2) of the Charter would have exactly the same meaning as Article 18(1) TFEU, Article 21(2) would have no effet utile at all. Article 21(2) of the Charter is not burdened with the historical role of Article 18(1) TFEU. Moreover, Article 21(2) is placed in a chapter on Equality in an instrument that, with a few notable and explicit exceptions, grants all the rights codified in the Charter to ‘everyone’. Since the Treaty of Amsterdam the status of third-country nationals is clearly within the scope of the treaties. The text of Article 21(2) does not provide any basis to exclude third-country nationals from its protection. A second argument is that Member States did not want to create an equal status for third-country nationals but intended to create a different status when adopting the new EU migration and asylum directives. In EU law intentions are a strong argument only where those intentions resulted in clear provisions in the texts adopted. Examples of such clear choices are: no free movement between Member States for third-country nationals unless granted by secondary legislation (Article 45(2) EU Charter and Article 79(2)(b) TFEU), no political rights (Articles 39 and 40 EU Charter), no diplomatic pro­ tec­ tion or no constitutional guarantee of free access to employment (Article 15(3) EU Charter). Peers lists in his contribution the other exceptions to the rule that almost all rights in the EU Charter are granted to everyone. Another example where Member States decided explicitly not to use the rights   EcrtHR 16 September 1996, Gaygusuz v. Austria [1997] 23 EHRR 364, par. 42.

33

22  Kees Groenendijk

of EU nationals as the model is Article 14(1) of the Family Reunification Directive where the family members after admission are granted equal access to the labor market as their sponsor. In my view those explicit exceptions are not a strong argument for a different interpretation of unclear or vague provisions in secondary legislation on issues not related to those exceptions, especially if the explicit aim of the directive, according to its preamble, is to create a status comparable with or as near as possible to the status of EU nationals for the third-countries nationals concerned. The third argument is that the aim of the Internal Market is to realize the integration of the Member States and their nationals. Third-country nationals are concerned less by this aim. There is no necessity in Union law to grant rights to third country nationals that often have been granted on the basis of reciprocity only.34 Third-country residents, however, are part of the population of Member States and, hence, directly affected by the Internal Market. Most internal market rules apply to all residents irrespective of their nationality. Reciprocity has lost much of its significance as a basic principle in EU law. The fourth argument suggests that if some categories of third-country nationals would be granted similar rights as EU nationals, the same treatment would have to be granted to all third-country nationals (the domino theory). The apparent differences in status and rights under different migration and asylum directives disprove this argument. Not all differences between EU nationals and third-country nationals are forbidden. Free movement to other Member States is granted as a fundamental right to EU nationals, but to certain categories of third-country nationals only under specific conditions. Neither are all differences in treatment between categories of third-country nationals forbidden. The EU law principle of non-discrimination requires that those differences are properly justified. A good example of an effort to provide a justification for difference in treatment between third-country nationals, solely on the basis of their nationality, are the proposals by the Commission to move certain third states from the negative to the positive list (or the other way round) attached to the EU Visa Regulation.35 The justification may be disputed. Making such differences in treatment can no longer be taken for granted or as self-evident.

  So Bundesverwaltungsgericht 30 March 2010, Neue Verwaltungszeitschrift 2010, p. 964 and Deutsches Verwaltungsblatt 2010, p. 923, point 65. 35   E.g. COM(2010) 538 par. 2.3, COM(2010)526 and COM(2009)366. 34

Section 1 EU Citizens?

Citizenship in Motion: The Development of the Freedom of Movement for Citizens in the Case-law of the Court of Justice of the European Union Jonathan Tomkin On the morning of 1 November 1993 nationals of EU Member States awoke for the first time as Citizens of the Union. This newly acquired status, resulting from the entry into force of the Maastricht Treaty, entailed an assortment of rights, central among which was the right to move and reside freely throughout the territory of the Member States. Although sounding somewhat momentous, the declaration of free movement was subject to limitations laid down in the Treaty and existing secondary legislation. As such, the question arose as to whether it reflected any meaningful advancement on the free movement rights of Member State nationals. Or was it more cosmetic in nature serving to render existing free movement rights more visible with, at best, a hint of more substantial rights to follow? And how have the free movement rights of Union citizens evolved in the meantime? These are the questions that this Chapter seeks to address through an examination of the case-law of the Court of Justice of the European Union (the ‘Court of Justice’). 1.  Freedom of Movement for Persons prior to the Introduction of Union Citizenship The Court of Justice has consistently recognised the principle of freedom of movement of persons as one of the legal foundations of what is now the European Union.1 It has consequently interpreted the provisions enshrining that principle broadly2 and extended rights under Union law to a wide range   Case 139/85 Kempf [1986] ECR 1741, paragraph 13; Case C-292/89 Antonissen [1991] ECR I-745, paragraph 11; and Case C-215/03 Oulane [2005] ECR I-1215, paragraph 16. For detailed consideration of the development of freedom of movement for persons case-law prior to the introduction of Union citizenship and assessment of its impact on the Court’s early citizenship case-law, see S. O’Leary, The Evolving Concept of Community Citizenship – from the Free Movement of Persons to Union Citizenship, The Hague: Kluwer Law International 1996. 2  Case C-344/95 Commission v. Belgium [1997] ECR I-1035, paragraph 14; Case C-357/98 Yiadom [2000] ECR I-9265, paragraph 24, and Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, paragraph 64. 1

26  Jonathan Tomkin

of categories of Member State nationals moving within the territory of Member States.3 Thus, for example, in its case-law on the freedom of movement for workers, the Court has applied a Community law definition of ‘worker’ that covered individuals pursuing genuine and effective activities in a variety of different contexts.4 In particular, the definition has been held to be applicable to arrangements which were particularly limited in terms of hours5 or duration,6 where remuneration was essentially non pecuniary7 or so low that it fell below the minimum wage8 or where it required supplementing from public funds.9 In certain circumstances, and subject to limitations, the Treaty provisions on workers were even held to cover the situation of former workers10 and job seekers.11 The Court has further held that individuals seeking access to vocational studies, who – even on the basis of an expansive interpretation – could not be considered to fall within the Community law   Vocational students in Case 293/83 Gravier [1985] ECR 593, tourists in Case 186/87 Cowan [1989] ECR 195, or Case C-348/96 Calfa [1999] ECR I-11, and job seekers in Case C-292/89 Antonissen [1991] ECR I-745.  4   In the context of a religious community known: Case 196/87 Steymann [1988] ECR I-6159 or in the context of an occupational and social reintegration programme: Case C-456/02 Trojani [2004] ECR I-7573. In Case C-94/07 Raccanelli [2008] ECR I-5939, the Court was asked whether a doctoral student on the basis of a grant contract fell within the Community definition of ‘worker’. The Court did not exclude the possibility, but left the final decision to the national court on the basis of the facts at its disposal.  5   Case C-444/93 Megner and Scheffel [1995] ECR I-4741, paragraph 18 ‘it appears from the Court’s case-law that the fact that his employment […] normally does not exceed 18 hours a week (see Case C-102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraphs 7 and 17) or 12 hours a week (see Case 139/85 Kempf v. Staatssecretaris van Justitie [1986] ECR 1741, paragraphs 2 and 16) or even 10 hours a week (see Case 171/88 Rinner-Kuehn [1989] ECR 2743, paragraph 16) does not prevent the person in such employment from being regarded as a worker […]’. Work undertaken must be effective and genuine and excludes activities on such a small scale as to be regarded purely marginal and ancillary: Case C-357/89 Raulin [1992] ECR I-1027, paragraphs 9, 10 and 13; Case C-3/90 Bernini [1992] ECR I-1071, paragraph 16.  6   In Case 197/86 Brown [1988] ECR 3205, the plaintiff in the main proceedings worked for eight months. In Case C-413/01 Ninni-Orasche [2003] ECR I-13187 the term of employment was fixed for two and a half months.  7   In Case C-456/02 Trojani [2004] ECR I-7573, the remuneration was lodging and pocket money. In Case 196/87 Steymann [1988] ECR I-6159, the Bhagwan religious Community provided for ‘material needs’ of its members and gave pocket money.  8   Case 53/81 Levin [1982] ECR 1035.  9   Case 139/85 Kempf [1986] ECR 1741. 10   Case 39/86 Lair [1988] ECR 3161, paragraphs 29 to 36; Case C-35/97 Commission v. France [1998] ECR I-5325, paragraph 41; Case C-138/02 Collins [2004] ECR I-2703, paragraph 27; and Case C-228/07 Petersen [2008] ECR I-6989, paragraph 48. 11  C-292/91 Antonissen [1991] ECR I-745, paragraphs 12 and 13, and Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 32.  3

Citizenship in Motion   27

definition of worker, could nevertheless fall within the scope of other Treaty provisions and thereby claim an entitlement to rely on rights under Commu­ nity law.12 The Court has adopted a similarly inclusive approach in relation to providers and recipients of services13 as well as to Member State nationals moving to establish economic operations in another Member State.14 The Court’s expansive approach to interpreting free movement rights of EU nationals was not just apparent from its broad identification of beneficiaries of Community law rights, but also from the scope of measures that were subject to judicial scrutiny. Thus for example, in the case of Cowan,15 the Court held that a British tourist travelling to France, as a recipient of services, was entitled to equal access to a compensation scheme for criminal injury, even though the scheme fell within the competence of Member States.16 The Court emphasised that even in relation to areas in which Member States enjoy exclusive competence, such competence must be exercised in a manner that respects Community law.17 The Court has also applied strict tests to determining whether national measures were liable to breach free movement rights enshrined in the Treaty. In addition to measures which are directly18 or indirectly19 discriminatory, the Court held that indistinctly applicable measures restricting or discouraging

 Case 293/83 Gravier [1985] ECR 593. The Court clarified the scope of its judgment in Gravier in Case 39/86 Lair [1988] ECR 3161, paragraph 12 and Case 197/86 Brown [1988] ECR 3205. 13  Case 186/87 Cowan [1989] ECR 195. In Case C-60/00 Carpenter [2002] ECR I-6279, Community law was held to apply to a UK national in relation to UK legislation. The Court considered that Mr Carpenter’s business involved frequent travel as a Community service provider and that the legislation at issue would be detrimental to his family life and the conditions in which he exercises a fundamental freedom. 14   Case C-369/90 Micheletti [1992] ECR I-4239, paragraph 10. In this case, provisions on the freedom of establishment were held to preclude national law deeming a dual Argentinean and Italian national to be a non Member State national on the basis of his habitual residence. See also Case C-168/91 Christos Konstantinidis [1993] Page I-1191, paragraph 12. 15   Case 186/87 Cowan [1989] ECR 195. 16   Case 186/87 Cowan [1989] ECR 195, paragraphs 15 to 19. 17   Case 186/87 Cowan [1989] ECR 195. 18   For example Case C-118/92 Commission v. Luxembourg [1994] ECR I-1891, and Case C-465/01 Commission v. Austria [2004] ECR I-8291 where national rules precluded non Member State nationals from standing for election to certain employees’ representative bodies. 19   For example residence conditions which tend to have a particularly disadvantageous effect on migrant Member State nationals: Case C-57/96 Meints [1997] ECR I-6689; C-212/05 Hartmann [2007] ECR I-6303, paragraphs 28 to 31; Case C-228/07 Petersen [2008] ECR I-6989, paragraphs 53 to 55. In the context of services, see Case C-388/01 Commission v Italy [2003] ECR I-721, paragraphs 13 and 14. 12

28  Jonathan Tomkin

free movement may constitute a violation of Community law unless it is justified by an overriding reason in the general interest and proportionate to the objective sought to be achieved.20 The Court’s recognition of certain categories of economically inactive Member State nationals as beneficiaries of rights under the Treaty was subsequently confirmed,21 if somewhat circumscribed, by the Community legislature in a number of residence directives,22 in particular Directive 90/364,23 Directive 90/36524 and Directive 90/366.25 Directive 90/365 governed the residence rights of former employees or self-employed persons no longer pursuing an occupational activity. Directive 90/366, subsequently annulled and replaced by Directive 93/3626 regulated the residence rights of vocational students (the ‘students’ residence directive’). Directive 90/364 provided a right of residence to nationals who did not fall within the scope of any other provision of Community law. Although these directives extended free movement rights to economically inactive individuals, such rights were nevertheless made subject to a requirement of adequate health insurance and sufficient financial resources. Moreover, the students’ residence directive contained an express provision excluding students’ entitlement to the payment of maintenance grants by the host Member State. Thus, notwithstanding the Court’s expansive interpretation of the freedom of movement of persons, the fact remained that at the time Union citizenship was introduced, free movement rights were generally restricted to individuals  moving for the purpose of engaging in some form of economic activity.   Case C-415/93 Bosman [1995] ECR I-4921, paragraphs 98 and 99. See also Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Case C-370/90 Singh [1992] ECR I-4265, paragraphs 19 and 20; Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 22; Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 39, and Case C-56/09 Zanotti, 20 May 2010, not yet reported, paragraphs 41 to 43. 21   The third Recital to Directive 90/366 refers expressly to the case-law of the Court of Justice. 22   For detailed consideration of the context and negotiations leading to the adoption of the residence directives, see S. O’Leary, The Evolving Concept of Community Citizenship – from the Free Movement of Persons to Union Citizenship, The Hague: Kluwer Law International 1996, p. 111–118. 23   Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26). 24   Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity (OJ 1990 L 180, p. 28). 25   Council Directive 90/366/EEC of 28 June 1990 on the right of residence for students (OJ 1990 L 180, p. 30). 26   Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students (OJ 1993 L 317, p. 59). Directive 90/366 was annulled by the Court in Case C-295/90 Parliament v Council [1992] ECR I-4193. 20

Citizenship in Motion   29

While the Community legislature eventually conferred rights of residence on economically inactive individuals, such rights were nevertheless limited to self supporting Member State nationals. 2.  Freedom of Movement for Citizens The provisions establishing and defining Union Citizenship were initially inserted under Article 8 of the EC Treaty by Title II, Article G, of the 1992 Treaty on European Union. The numbering has changed by virtue of successive Treaty amendments.27 Most recently, following the entry into force of the Lisbon Treaty, the provisions are to be found under the heading ‘Nondiscrimination and Citizenship of the Union’ and appear in Articles 20 to 25 of the Treaty on the Functioning of the European Union. Initially, it was Article 8a EC (now Articles 20(2)(a) and 21 TFEU) which conferred Union citizens with the right of free movement. However, after declaring that ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States’ the provision went on to clarify that such rights remained ‘subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect’. It followed from the wording of Article 8a EC that although the right of free movement afforded to Union Citizens was elevated to the status of a Treaty right, it continued to be subject to the constraints laid down in existing residence directives, in particular, the conditions of possessing adequate health insurance and sufficient resources. In these circumstances, the immediate force of Article 8a EC was considered somewhat underwhelming.28 Even among Member States, there was divergence as to the consequences of the introduction of Union Citizenship. In one early citizenship case, the Belgian and Danish governments argued that citizenship of the Union did not entail new or more extensive rights from those already existing in Community law.29 The French government considered that a broad interpretation of Union citizenship provisions would be difficult to reconcile with rights attaching

  The Citizenship Provisions were initially inserted into Article 8, 8a – 8e of the EC Treaty. Following the Amsterdam Treaty, the provisions were renumbered Articles 17 to 22 of the EC Treaty. The provisions now feature in Articles 20 to 25 TFEU. 28   S. O’Leary, ‘The Options for the Reform of European Union Citizenship’, in: S. O’Leary and T. Tiilikainen (eds), Citizenship and Nationality Status in the New Europe, London: Sweet & Maxwell 1998; D. O’Keeffe, ‘Union Citizenship’, in D. O’Keeffe and P. Twomey (eds.) Legal Issues of the Maastricht Treaty, London: Chancery/Wiley 1994. 29  C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 21. 27

30  Jonathan Tomkin

to nationality.30 By contrast, the Portuguese Government argued that as a consequence of the introduction of Union citizenship, Member State nationals were no longer to be regarded as economic entities forming part of an essentially economic community. It followed that limitations to rights of migrant Member State nationals should be interpreted in light of their status as citizens of the Union.31 After a number of false starts,32 the Court was soon provided with an opportunity to consider and engage with the newly inserted citizenship provisions. The Court’s citizenship case-law lends itself to examination under two distinct though sometimes overlapping perspectives. The first perspective relates to the right of migrant Union citizens to equal treatment in another Member State. The second perspective concerns national measures that may be considered to restrict or deter a Union citizen from moving and residing in another Member State. Each perspective will be considered in turn. 3.  Union Citizens’ Right to Equal Treatment The early cases on Union citizenship concerned the right of Union citi­ zens  ­resident in another Member State to equal treatment in that Member State and commonly arose in the context of seeking access to various social benefits. In the case of Martinez Sala,33 the applicant in the main proceedings was a Spanish national whose request for a family benefit in Germany was refused on the ground that she was not in a position to produce a certain type of residence permit. Notwithstanding the absence of that document, it appeared that Ms Martinez Sala was lawfully resident in the host Member State. At the hearing, the German government conceded that the national legislation treated migrant Member State nationals unequally since German nationals were not required to submit the document in question. Nevertheless, it argued that the equal treatment provisions under Community law did not apply since the applicant did not fall within the personal scope of the Treaty. The Court disagreed, noting that the applicant was a Union Citizen lawfully resident in another Member State. The Court concluded that as a consequence she was  C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 22.  C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 23. 32   Case C-193/94 Skanavi and Konstantin Chryssanthakopoulos [1996] ECR I-929, paragraph 22; Case C-299/95 Kremzow [1997] ECR I-2629, paragraphs 13 and 19, and joined cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171. 33   Case C-85/96 Martínez Sala [1998] ECR I-2691. 30 31

Citizenship in Motion   31

entitled to rely on rights under the Treaty, including, the right not to suffer discrimination enshrined in what is now Article 18 TFEU.34 A next and significant step in the development of the Court’s citizenship case-law occurred in the case of Grzelczyk.35 Here the Belgian authorities refused a final year French university student access to a minimum subsistence allowance on grounds that the applicant was neither Belgian nor a worker. In observations before the Court, the authorities submitted that the right of free movement was subject to the limitations set out in secondary legislation, namely, evidence of possessing sufficient financial resources. Moreover, the students’ residence directive expressly excluded any entitlement to maintenance grants in the host Member State. In deciding this case, the Court was required to reconcile the objective of facilitating free movement, with the recognition that Member States’ social security budgets and the corresponding ties of fiscal solidarity are inevitably limited. Given that Member States’ welfare systems are financed on a national basis, an excessively onerous interpretation of social welfare entitlements in favour of non-economically active, and therefore non-economically contributing, migrant Union citizens could undermine the fiscal integrity of a Member State’s welfare system. On the other hand, a strict interpretation of the ‘sufficient resources’ requirement could result in citizens who had settled and made their home in another Member State from being excluded from social assistance and possibly even being forced out of that State in circumstances where they encounter financial hardship. Such an interpretation would, moreover, run counter to the objective of promoting freedom of movement for citizens. The Court ultimately opted for a compromise position that nonetheless served to strengthen citizens’ rights significantly. It interpreted the requirement to provide evidence of sufficient resources in light of its objective which, according to the sixth recital of the student’s residence directive, was to ensure that migrant Union citizens did not become an ‘unreasonable burden’ on the public finances of the host Member State.36 The Court inferred there was scope for a certain degree of solidarity with migrant Union citizens experiencing hardship. As a consequence, despite the express requirement for migrant Union citizens to possess minimum resources, recourse to social assistance could not automatically entail the termination of a right of residence and   Formerly Article 12 EC (prior to the Treaty of Lisbon) and Article 6 EC (prior to the Treaty of Amsterdam). 35  C-184/99 Grzelczyk [2001] ECR I-6193. 36  C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 44. See also Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 90. 34

32  Jonathan Tomkin

national authorities would be obliged to consider each application on a case by case basis. The Court further noted that although the students’ residence directive excluded maintenance grants, the benefit sought in the present case did not constitute such a grant and therefore was not covered by the directive. In an uncharacteristically divinatory turn of phrase, the Court stated that Union citizenship is destined to be the fundamental status of nationals of the Member States.37 The Court has since continued to adopt a pragmatic and inclusive approach to interpreting citizens’ right of access to social benefits. The restriction on access to student maintenance grants provided for under the students’ residence directive, for example, was held to be relevant only where it was that directive which served as the legal basis for residence.38 Moreover, the Court held that limitations on the right to residence must comply with the principle of proportionality.39 Thus, for example, legislation in the Netherlands ­requiring evidence of sufficient resources to cover a period of at least one year’s ­residence, regardless of the actual period of residence envisaged, was held to be disproportionate to the objective of safeguarding public finances and incompatible with Union law.40 The Court has further held that it is not necessary for a Union citizen to prove he or she personally has sufficient resources, if such resources are put at his or her disposal by a carer41 or other third party.42 Regard­ing the condition for health insurance, the Court has confirmed that a  C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31. Indeed, this has become a formula repeatedly recited in the Court’s citizenship case law: C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 82; Case C-148/02 Garcia Avello [2003] ECR I-11613, paragraph 22 C-56/09; Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849, paragraph 86; Case C-135/08, Rottmann, 2 March 2010, not yet reported, paragraph 43 and Case C-56/09 Zanotti, 20 May 2010, not yet reported, paragraph 68. The expression appears, in a somewhat diluted form, in the third recital to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34) (hereinafter ‘Directive 2004/38’). The third recital states that ‘Union citizenship should be the fundamental status of nationals of the Member States […]’ (emphasis added). 38   Case C-209/03 Bidar [2005] ECR I-2119, paragraphs 44 to 48. 39   Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 91; Case C-200/02 Zhu and Chen [2004] ECR I-9925, paragraph 32; Case C-408/03 Commission v. Belgium [2006] ECR I-2647, paragraph 39, and Case C-398/06 Commission v. Netherlands [2008] ECR I-56. 40   Case C-398/06 Commission v. Netherlands [2008] ECR I-56, paragraph 29. 41   Case C-200/02 Zhu and Chen [2004] ECR I-9925, paragraphs 29 to 33. 42   Case C-408/03 Commission v. Belgium [2006] ECR I-2647, paragraphs 40 to 42. 37

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Union citizen may be considered to satisfy that condition, even if insurance cover is arranged in a Member State other than the host Member State.43 Although it is legitimate for a Member State to place certain restrictions on accessing social benefits, eligibility conditions for a particular benefit must be sufficiently nuanced to be able to take into account the extent of a Union citizen’s ties with his or her Member State of residence with due regard to the specific nature and purpose of that benefit.44 In a number of cases, the Court has found that Union citizens who demonstrate a certain degree of integration,45 or display genuine or real links46 with a host Member State must receive the same treatment as Member State nationals and that their exclusion from social assistance is incompatible with Union law.47 In considering whether real links exist, the Court will typically have regard to factors, or combinations of factors, such as, whether the claimant is a national of the Member State concerned,48 or whether he or she has spent time living,49

  Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 92.  In relation to job seekers allowance, for example, a Member State may require a link between the applicant and the geographic employment market: See Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 38; Case C-138/02 Collins [2004] ECR I-2703, paragraph 69, and Case C-258/04 Ioannidis [2005] ECR I-8275, paragraph 30. If a particular benefit falls within the competence of Member States, then the Court has accepted that Member States enjoy a wide margin of appreciation in determining the criteria to be applied to assess the degree of connection to a society: Case C-103/08 Gottwald, 1 October 2009, not yet reported, paragraph 34. In Gottwald, the Court further noted that the place of residence or ordinary residence was an appropriate criterion in deciding whether individuals enjoy a sufficient degree of integration with a Member State to avail of an exemption on motorway tolls for persons with disability. Such condition permitted a distinction to be drawn between occasional and regular users of the roads networks in Austria. 45  Case C-209/03 Bidar [2005] ECR I-2119 paragraphs 56 to 59; Case C-158/07 Förster [2008] ECR I-8507, paragraphs 49 and 50, and Case C-103/08 Gottwald, 1 October 2009, not yet reported, paragraph 35 46  Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 38, Case C-138/02 Collins [2004] ECR I-2703, paragraph 67; Case C-258/04 Ioannidis [2005] ECR I-8275, paragraph 30; Case C-499/06 Nerkowska [2008] ECR I-3993, paragraphs 39 to 43; and Joined cases C-22/08 and C-23/08 Vatsouras and Koupatantze [2009] ECR I-4585, paragraph 38. 47  Case C-224/98 D’Hoop [2002] ECR I-6191; Case C-209/03 Bidar [2005] ECR I-2119; Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161; Case C-499/06 Nerkowska [2008] ECR I-3993. 48  In Case C-224/98 D’Hoop [2002] ECR I-6191, the applicant in the main proceedings was a national of the State in which she sought the benefit. 49  In Case C-499/06 Nerkowska [2008] ECR I-399, the Court found the applicant for a benefit from Poland had sufficient links with that Member State. The Court noted she was Polish national and had lived for over 20 years in Poland, during which time she studied and worked there. 43 44

34  Jonathan Tomkin

being educated,50 working,51 or seeking work52 in that State. In particular, the length of time spent in another Member State may be indicative of the degree to which a Union citizen has developed ties with that State.53 In the case of Förster, the Court upheld national legislation which made access to social assistance subject to a period of five years residence in a host Member State.54 As a rule, the real link test applies in the context of economically inactive Union citizens, since citizens engaged in an economic activity are, by virtue of that activity, considered to possess sufficient links with the host Member State.55 While a number of the citizens’ equal treatment and non discrimination cases concern the right of access to various social benefits, this right has been litigated and confirmed in a number of other contexts. The Court has, for example, confirmed the right to equal treatment in relation to conditions governing: eligibility for tax advantages,56 the choice of language in which a criminal trial is to be held,57 the taking and processing of data of Union citizens entering or residing in a host Member State,58 the naming of a child,59 the right to stand and vote for European Parliament elections,60 and the right of access to higher education.61

  In Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161, at paragraph 45 the Court noted that the applicants in the main proceedings, who were German nationals, were raised and completed their schooling in Germany and that they therefore satisfied the sufficient link requirement. 51   Case C-499/06 Nerkowska [2008] ECR I-3993. 52   Case C-138/02 Collins [2004] ECR I-2703, paragraphs 69 and 70. 53  Case C-209/03 Bidar [2005] ECR I-2119, paragraph 59; Case C-158/07 Förster [2008] ECR I-8507, paragraph 50, and Case C-103/08 Gottwald, 1 October 2009, not yet reported, paragraph 35. 54   Case C-158/07 Förster [2008] ECR I-8507 55   The ‘real link’ test was unusually applied to a worker in the case of Case C-213/05 Geven [2008] ECR I-6347, paragraphs 28 to 30. Here, the Court found that the limited hours performed by a frontier worker did not provide evidence of sufficient links to enable her to qualify for a family benefit. For comment on this case, see Síofra O’Leary, ‘Developing an Ever Closer Union between the People’s of Europe? A reappraisal of the case-law of the Court of Justice on the free movement of persons and EU citizenship’, in: Yearbook of European Law 2008, volume 27, Oxford: Oxford University Press 2009, p. 167–194. 56   Case C-56/09 Zanotti, 20 May 2010, not yet reported. 57   Case C-274/96 Bickel and Franz [1998] ECR I-7637. 58   Case C-524/06 Heinz Huber [2008] ECR I-9705. 59   Case C-353/06 Grunkin and Paul [2008] ECR I-7639. 60   Case C-300/04 Eman and Sevinger [2006] ECR I-8055, paragraphs 57 to 61. 61   Case C-73/08 Bressol and Chaverot, 13 April 2010, not yet reported. 50

Citizenship in Motion   35

4.  National Measures Hindering the Exercise of Free Movement Rights The Court has consistently held that the exercise of free movement rights enshrined in what is now Articles 20(2)(a) and Article 21 TFEU, is sufficient to bring a Union citizen within the material scope of Community law.62 Consequently, once a national measure affects the conditions in which Union citizens exercise or wish to exercise free movement rights, the measure may become subject to review – even where such measure falls within the exclusive competence of Member States.63 In line with its case-law on economically active persons, the Court’s scrutiny of national measures suspected of hindering citizens’ free movement rights extends beyond the realm of ­discrimination. Any measure, discriminatory or otherwise, that is liable to deter,64 dissuade65 or discourage66 a Union citizen from exercising his or her free movement rights is prohibited unless justified by an overriding reason in the general interest and proportionate to the objectives sought to be achieved. In this context, an important step in the Court’s citizenship case-law was the recognition that the right of free movement enshrined in Article 18 EC (now Articles 20(2)(a) and Article 21 TFEU) was directly effective.67 As a consequence, every Union citizen could invoke free movement rights directly before national courts to challenge national measures suspected of restricting such rights. The case of D’Hoop68 is an early example of where the Court considered the compatibility of a national measure from the perspective of both discrimination and dissuasive effect. The applicant in the main proceedings was a Belgian national who completed her secondary schooling in France and subsequently returned to Belgium in order to seek employment. The applicant was refused   Case C-148/02 Garcia Avello [2003] ECR I-11613, paragraph 24; Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849, paragraph 87, and Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161, paragraph 23. 63   See Case C-135/08, Rottmann, 2 March 2010, not yet reported, paragraph 41 and cases cited. 64  Case C-370/90 Singh [1992] ECR I-4265, paragraphs 19 and 20; Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 31, and Case C-291/05 Eind [2007] ECR I-10719, paragraph 35. 65   Case C-192/05 Tas-Hagen and Tas [2006] ECR I-10451, paragraph 32. 66   Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161. 67   Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 84; Case C-408/03 Commission v. Belgium [2006] ECR I-2647, paragraph 34, and Case C-398/06 Commission v. Netherlands [2008] ECR I-56, paragraph 27. 68   Case C-224/98 D’Hoop [2002] ECR I-6191. For a further example, see Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161, paragraphs 25 and 26. 62

36  Jonathan Tomkin

an allowance for first time job-seekers on the grounds that she had completed her secondary school studies abroad. Ms D’Hoop argued, and the Court agreed, that her exclusion was discriminatory. Belgian citizens who exercised free movement rights were disadvantaged in comparison with Belgian citizens who had remained in Belgium.69 It is noteworthy, however, that the Court also considered the contested national law from the perspective of its dissuasive effect on exercising free movement rights.70 In particular, the Court considered that Union citizens would be dissuaded from leaving Belgium to study abroad if they had cause to suspect that they would be disadvantaged on account of having exercised their right of free movement. The case-law of the Court of Justice reveals two broad contexts in which national measures considered restrictive of free movement rights have been challenged. The first context arises where a Member State of origin adopts measures which may restrict or deter a Union citizen from leaving his or her home State in exercise of free movement rights. The second context concerns measures adopted by a host Member State, which render it less attractive for a Union citizen to take up residence in that Member State. Each will be considered in turn. 4.1.  National Measures Adopted in the Member State of Origin A number of ‘home State’ free movement cases have required the Court to consider the compatibility of conditions making the eligibility or payment of various State benefits subject to continued residence in that State.71 In the case of Nerkowska,72 the applicant in the main proceedings challenged a national measure making the payment of a disability pension for victims of war or repression conditional on continued residence in Poland. The applicant argued the measure was incompatible with Union law because it deterred the exercise of her free movement rights. The Polish authorities sought to justify the measure, among others, on the grounds that the residence condition reflected the legislature’s intention to assist those individuals who have a special connection with the people of Poland. In its judgment, the Court reiterated that even with   Case C-224/98 D’Hoop [2002] ECR I-6191, paragraphs 33 and 34.   Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 31. In applying the ‘dissuasive effect’ test, the Court made express reference to its case-law on the right of establishment, namely, Case C-370/90 Singh [1992] ECR I-4265. 71   Case 406/04 De Cuyper [2006] ECR I-6947; Case C-192/05 Tas-Hagen and Tas [2006] ECR I-10451; Case C-499/06 Nerkowska [2008] ECR I-3993, and Case C-221/07 ZablockaWeyhermüller [2008] ECR I-9029 72  C-499/06 Nerkowska [2008] ECR I-3993. 69 70

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respect to compensation for historical persecution, which falls within the exclusive competence of Member States,73 such competence must be exercised in a manner that respects Union law.74 The Court noted that the applicant was a Polish national who had spent over 20 years in Poland, both as a student and as a worker. In light of the applicant’s links with Poland and the nature of the benefit at issue, the Court held the residence condition represented a disproportionate interference with free movement rights and was therefore incompatible with Union law. The Court has on occasion been asked to consider the compatibility of measures restricting the award of grants75 or the application of special tax treatment76 to Union citizens wishing to leave a Member State of origin in order to pursue a course of studies in another Member State. In Morgan & Bucher,77 the applicants in the main proceedings were German nationals whose requests for student grants were rejected because the studies abroad did not qualify as a continuation of studies pursued previously in Germany for a period of at least one year. The students argued that such a condition was inappropriate given that the relevant courses were not available in their Member State of origin. The Court of Justice held that the eligibility conditions at issue were liable to discourage Union citizens from exercising their rights to study abroad and incompatible with Union law. The Court noted that the deterrent effect was of particular importance in the context of education since provisions in the Treaty refer expressly to the objective of encouraging the mobility of students and teachers.78 Moreover, both applicants in the domestic proceedings were considered to have sufficient ties with their Member State of origin as they were raised and completed their schooling there.

  Allowances for victims of war are expressly excluded from Regulation 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ L 149, p. 2). See Case 9/78 Gillard and Caisse régionale d’assurance maladie du Nord-Est [1978] ECR 1661, paragraph 13; Case 207/78 Even and ONPTS [1979] ECR 2019, paragraphs 12 to 14, and Case C-386/02 Baldinger [2004] ECR I-8411, paragraph 18. 74  C-499/06 Nerkowska [2008] ECR I-3993, paragraphs 23 to 26. See also Case C-135/08, Rottmann, 2 March 2010, not yet reported, paragraph 41. 75   Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161. 76   Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849, and Case C-56/09 Zanotti, 20 May 2010, not yet reported, paragraph 71. 77   Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161. 78   Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161, paragraph 27. The Court referred to Article 3(1)(q) EC and Article 149(2) EC, which are now, in substance, Article 6(e) TFEU and Article 165(2) TFEU. 73

38  Jonathan Tomkin

In Schwarz and Gootjes-Schwarz,79 and Zanotti80 the Court held that a home Member State’s failure to treat tuition fees charged by an educational establishment as a tax deductible expense, on the ground that the establishment was situated outside the territory of that Member State, is incompatible with rights now enshrined in Article 21 TFEU. The Court emphasised such difference in tax treatment is likely to deter Union citizens from exercising free movement rights.81 Union law does not, however, preclude a home State from limiting amounts that may be deducted to a particular level if the relief granted corresponds to that which would be available in that home State and would not have a dissuasive effect on the exercise of free movement rights.82 ‘Home State’ cases have concerned not only financial disincentives, but legal restrictions on travel to another Member State. In Jipa,83 the Court considered the entitlement of a Member State to restrict a national of that State from leaving its territory on grounds of public policy and public security. Mr Jipa was a Romanian national who, prior to Romania’s accession to the Union, had been illegally resident in Belgium. Following his repatriation, the Romanian authorities restricted his travel to Belgium for a period of three years. While the Court affirmed the general right of a Member State to determine its own policy and security requirements, it held that such requirements, as derogations to a fundamental principle of free movement, could not be determined unilaterally by each Member State without any control by the Community institutions. The Court further reiterated its case-law according to which restriction on public policy grounds may only be justified where the personal conduct of the individual concerned constitutes a genuine, present and sufficiently serious threat to one of the fundamental interests of society and complies with the principle of proportionality.84 The Court has at times been confronted with situations where a Union citizen, having moved to another Member State, subsequently wishes to resettle in her or his Member State of origin. The Court has consistently held that the fact that an individual had left in exercise of free movement rights means that the conditions of his return also fall within the scope of Union law.85

  Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849.   Case C-56/09 Zanotti, 20 May 2010, not yet reported. 81   Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849, paragraph 89, and Case C-56/09 Zanotti, 20 May 2010, not yet reported, paragraph 71. 82   Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849, paragraph 80, and Case C-56/09 Zanotti, 20 May 2010, not yet reported, paragraphs 51 to 62. 83   Case C-33/07 Jipa [2008] ECR I-5157. 84   Case C-33/07 Jipa [2008] ECR I-5157, paragraphs 23 to 26. 85   Case C-370/90 Singh [1992] ECR I-4265, and Case C-291/05 Eind [2007] ECR I-10719. 79 80

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Accordingly, national measures adopted by a Member State of origin in respect of a returning national will remain subject to Union law. The Court’s rationale has been that an individual may be deterred from exercising free movement rights and leaving his or her home Member State, if he or she would be disadvantaged upon return, or if the conditions of return were otherwise less favourable than those enjoyed by the migrant Union citizen in the host Member State.86 4.2.  National Measures Adopted in the Host Member State The citizenship case-law of the Court of Justice makes it clear that Union law prohibits national measures taken by a host Member State that restrict or deter Union citizens from moving to reside in that Member State. In a number of cases, the Court has been asked to consider the conditions in which Union Citizens and their family members may enter and remain in a host Member State. Already prior to the introduction of Union citizenship, the Community legislature had recognised the right of economically active Member State nationals to be accompanied by their family members, regardless of nationality, in a number of different instruments adopted on the basis of the free movement provisions of the Treaty.87 Aside from considerations relating to the respect for family life enshrined in Article 8 of the European Convention on Human Rights,88 the Court considered that measures restricting family members of Member State nationals from accompanying or joining such nationals in a host Member State would be liable to discourage the exercise of free movement rights.89 Although Member States are entitled to grant residence permits to migrant Member State nationals and their family members, the Court has repeatedly affirmed that such permits do not create rights of residence,   Case C-370/90 Singh [1992] ECR I-4265, paragraph 19; Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 31, and Case C-291/05 Eind [2007] ECR I-10719, paragraphs 35 to 37. 87   See for example Recital 5 and Articles 10 to 12 of Regulation (EEC) No. 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ L 257, p. 2). The right has since been confirmed in Recitals 5 and 8 and Articles 3, 5 and 7 of Directive 2004/38. 88   Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 72; Case C-60/00 Carpenter [2002] ECR I-6279, paragraphs 41 and 42; Case C-109/01 Akrich [2003] ECR I-9607, paragraphs 58 and 59, and Case C-503/03 Commission v. Spain [2006] ECR I-1097, paragraph 47. 89   Case C-370/90 Singh [1992] ECR I-4265, paragraph 20; Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 38; Case C-459/99 MRAX [2002] ECR I-6591, paragraph 53; Case C-441/02 Commission v. Germany [2006] ECR I-3449, paragraph 109; Case C-291/05 Eind [2007] ECR I-10719, paragraphs 35 to 37 and paragraph 44. 86

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but simply serve to evidence existing rights conferred directly by Commu­ nity law.90 Host Member States must therefore not make the exercise of free movement rights, including the issuing of residence permits, subject to additional  conditions91 or excessively burdensome administrative procedures.92 The Court has also reiterated that Member States are under an obligation to grant family members who are third country nationals every facility for obtaining any necessary visas. Such visas must be issued without delay and, as far as possible, at the place of entry into the national territory.93 Equally, the right to restrict admission of Member State nationals or their family members on grounds of public policy and public security has been interpreted narrowly by the Court. National authorities determining whether to exclude a Member State national or a family member must consider whether, having regard exclusively to the conduct of the individual concerned, he or she represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.94 Such principles, developed and applicable in relation to economically active Member State nationals, have in essence been extended to Union citizens by the Community legislature in Directive 2004/38 and by the Court.95 In the case of Metock,96 the Court confirmed that family members of Union citizens who are third country nationals are entitled to accompany, join and reside with a Union citizen in the host Member State regardless of whether they had been previously lawfully resident in another Member State.97 The Court also emphasised that third country nationals are entitled to reside in the host   Case 48/75 Royer [1976] ECR 497, paragraphs 31 to 33; Case C-357/89 Raulin [1992] ECR I-1027, paragraphs 36 and 42; Case C-370/90 Singh [1992] ECR I-4265, paragraph 17; Case C-344/95 Commission v. Belgium [1997] ECR I-1035, paragraph 22; Case C-459/99 MRAX [2002] ECR I-6591, paragraph 74, and Case C-215/03 Oulane [2005] ECR I-1215, paragraphs 17 and 18. 91   Case C-157/03 Commission v. Spain [2005] ECR I-2911, paragraphs 29 and 30. 92   Case C-344/95 Commission v. Belgium [1997] ECR I-1035. See also Case C-215/03 Oulane [2005] ECR I-1215. 93   Case C-459/99 MRAX [2002] ECR I-6591, paragraph 60, and Case C-157/03 Commission v. Spain [2005] ECR I-2911, paragraph 33. 94   Case 30/77 Bouchereau [1977] ECR 1999, paragraph 35; Case C-348/96 Calfa [1999] ECR I-11, paragraph 25; Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, paragraph 66; Case C-503/03 Commission v Spain [2006] ECR I-1097, paragraph 46, and Case C-50/06 Commission v. Netherlands [2007] ECR I-4383, paragraph 43. 95   See for example: Case C-200/02 Zhu and Chen [2004] ECR I-9925; Case C-1/05 Jia [2007] ECR I-1; Case C-33/07 Jipa [2008] ECR I-5157, and Case C-127/08 Metock and Others [2008] ECR I-6241. Relevant principles are also found, among others, in Articles 3, 5, 7, 9, 24, 27, 28, of Directive 2004/38. 96   Case C-127/08 Metock and Others [2008] ECR I-6241. 97   Case C-127/08 Metock and Others [2008] ECR I-6241, paragraphs 48 to 80. 90

Citizenship in Motion   41

Member State regardless of whether they were already family members at the time the Union citizen moved to the host Member State or whether they only became family members after the Union citizen moved to the host Member State. Equally, it was confirmed that the right of residence of third country national family members does not depend on the circumstances of entry into the host Member State and whether or not they were already resident in the host Member State when the Union citizen moved there.98 The Court has emphasised that a restrictive approach to interpreting Union citizens’ entitlement to the company of their family members would deter the exercise of free movement rights and thus constitute an obstacle to the exercise of fundamental freedoms guaranteed by the Treaty.99 5.  Beyond Freedom of Movement: The Rights of ‘Static’ Union Citizens It is apparent from the case-law considered above, that freedom of movement conferred on citizens constituted both a fundamental ingredient of Union citizenship rights enshrined in the Treaty, and a catalyst for further definition, refinement and enhancement of such rights. It was the actual or intended movement of Union citizens to Member States that gave rise to varied legal contexts in which the Court has had the opportunity to consider and develop the rights of migrant Union citizens. Moreover, it is the element of ‘movement’, actual or potential, within the territory of Member States that has most commonly and most unambiguously triggered the application of Union law and served to demarcate the line between the competence of the European Union and its Member States. In Metock,100 the Court of Justice rehearsed its well established caselaw according to which the position of Member State natonals residing in their  Member State of origin wihout having exercised free movement rights does not, in itself, give rise to a sufficient factual link to a situation governed by Union law, to enable it to fall within its scope of appliction.101

  Case C-459/99 MRAX [2002] ECR I-6591, paragraphs 77 to 79; Case C-127/08 Metock and Others [2008] ECR I-6241, paragraphs 85 to 93, 97 and 99; and Case C-551/07 Sahin [2008] ECR I-10453, paragraphs 27, 28, 32 and 33.  99   Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 38; Case C-459/99 MRAX [2002] ECR I-6591, paragraph 53; Case C-441/02 Commission v. Germany [2006] ECR I-3449, paragraph 109; Case C-291/05 Eind [2007] ECR I-10719, paragraph 44; and Case C-127/08 Metock and Others [2008] ECR I-6241, paragraph 56. 100   Case C-127/08 Metock and Others [2008] ECR I-6241. 101   Joined Cases 35/82 and 36/82 Morson and Jhanjan [1982] ECR 3723, paragraphs 15 to 17; Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171, paragraph 16.  98

42  Jonathan Tomkin

Consequently such ‘static’ Union citizens could not benefit from rights conferred by Union law and were therefore susceptible to suffering reverse discrimination, that is, they were in a more disadvantageous position compared with their migrant counterparts. Despite the arbitary effects produced by the difference in treatment of static and migrant Union citizens,102 the Court maintained that this was the natural and necessary consequence of the interaction and delimitation of two legal orders.103 However, within just under three years of its judgment in Metock, the Court in the case of Zambrano has reconsidered the scope of application of citizenship provisions, and with it, the conceptual borders of the Union legal order.104 This case concerned the right of third country national parents to reside and work in a Member State for the purpose of caring for their minor Union citizen children. The parents were failed asylum seekers from Colombia whose Belgian born children acquired Belgian nationality (on the ground that they had not been conferred with Colombian nationality and would otherwise have been rendered stateless). The parents sought to regularise their residence in accordance with Belgian law, but the application was rejected. Mr Ruiz Zambrano, the Union citizen children’s father, instituted proceedings before the labour court of Brussles submitting, among others, that he was entitled to reside and work in Belgium in his capacity as the parent of Union citizen children. The Union citizen children had always lived in Belgium and had not exercised free movement rights. In these circumstances, the Court of Justice was required to consider whether the applicant’s case fell within the scope of Union law, and whether Union law conferred a right of residence and a right to hold a work permit on the non national parent of minor Union citizens. In her Opinion, Advocate General Sharpston argued that the proposed deportation of non national parents and the effective deportation of Union citizen children could indeed impact on the citizens’ right of free movement in the future and was therefore not purely internal to a single Member State. The Advocate General further argued that in any event, the difference in treatment between ‘static’ and ‘mobile’ Union citizens produced random and uncertain results, and that reverse discrimination ought to be prohibited in the specific context of citizenship rights under Article 21 TFEU. In a tersely reasoned judgment, the Court substantially agreed. The Court noted that Article 20 TFEU precludes national measures which have the effect   For discussion on reverse discrimination see: E. Spaventa, ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects’, 2008 Common Market Law Review 45, p. 13–45. 103   Case C-127/08 Metock and Others [2008] ECR I-6241, paragraphs 76 to 78. 104   Case C-34/09 Zambrano, 8 March 2011, not yet reported. 102

Citizenship in Motion   43

of depriving Union citizens of the ‘genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’.105 The Court proceeded to hold that deporting non national parents or depriving such parents of an opportunity to work, would result in the effective deportation of Union citizen children which would in turn deprive them of the substance of their rights. Article 20 TFEU was therefore held to apply directly to Union citizens without the requirement of any manifest cross-border dimension to trigger the application of Union law. The Court will no doubt have futher opportunities to refine the scope and limits of this decision.106 Nevertheless, it remains that with the handing down of the judgment in Zambrano, Union citizenship has taken a step beyond the realm of freedom of movement. 6. Conclusion The declaration of citizens’ free movement rights enshrined in Article 8a EC provided a dedicated legal home for economically inactive Member State nationals wishing to move or reside within the territory of the Member States. Until then, such nationals could only enjoy free movement rights either by being squeezed into Treaty provisions intended for movement connected with economic pursuits, or, on the basis of residence directives whose scope was limited and which had previously been operating in something of a primary law vacuum. To the extent that the declaration of citizens’ rights of free movement remained subject to conditions provided for in existing secondary legislation, it was considered not so much a reflection of bold innovation, as a confirmation of the status quo. Nevertheless, the intervening years have shown that the introduction of the citizenship provisions into the Treaty has served to enhance the free movement rights of Member States’ nationals. As a first step, the Court interpreted the citizenship provisions in combination with the right to equal treatment and prohibition of discrimination, now enshrined in Article 18 TFEU. Once the situation of a Union citizen fell within the material scope of the Treaty, he or she was entitled to rely on provisions prohibiting discrimination on grounds of nationality. A further step in the advancement of citizens’ rights was the Court’s willingness to interpret secondary legislation, in particular, residence directives   Case C-34/09 Zambrano, 8 March 2011, not yet reported, paragraph 42.   See, for example, C-434/09 McCarthy, pending before the Court at the time of writing of this Chapter.

105 106

44  Jonathan Tomkin

concerning economically inactive Member State nationals, in light of the Treaty’s citizenship provisions. Thus, for example, although these directives clearly and unambiguously made rights of residence subject to a sufficient resource requirement, the Court emphasised that recourse to social benefits could not automatically entail the loss of residence rights. Access to social benefits was to be extended to Union citizens who could demonstrate a requisite degree of integration with their Member State of residence. The Court recognised that the ties of solidarity between Member States and migrant Union citizens precluded a blanket prohibition on accessing social benefits and that Member States were under an obligation to consider the situation of Union citizens on a case by case basis. A significant development in the Court’s citizenship case-law was the recognition that the exercise of free movement rights brought Union citizens within the material scope of the Treaty and that any measure that had a restrictive or deterrent effect was prohibited unless justified by an overriding objective in the general interest and proportionate to the aims sought to be achieved. Such prohibition was applicable both in the context of home State and host State measures and regardless of whether the national measures fell within the competence of the Community or Member States. Given that the right to free movement was recognised as being directly effective, every Union citizen could invoke that right directly before national courts. The scope of application of citizenship provisions was further extended by the Court in Zambrano. As a conseqence of this decision, Union citizens may invoke unspecified rights considered essential to the concept of Union citizenship – by the mere fact of their citizenship status – and without the requirement for having exercised free movement rights. More fundamentally still, the decision represented a shift in the dynamic between the Union legal order and that of the Member States. The requirement for a cross-border element, however marginal, as a precondition for triggering the application of Union law served to highlight the conceptual frontier between Union and Member State autonomy and their respective spheres of competence. Notwithstanding the specificity of the decision within the field of Union citizenship, the direct application of Article 20 TFEU in a factual context which essentially concerns a single Member State, represents an advance into the competence and autonomy of Member States. The introduction of Union Citizenship has moreover resulted in a fundamental change in the relationship between Member State nationals and the European Union. Prior to the introduction of citizenship, Member State nationals were conferred with free movement rights essentially on the basis of the economic function they performed. Following the introduction of Union Citizenship, however, movement in connection with an economic endeavour

Citizenship in Motion   45

was relegated to constituting merely the ‘specific expression’ of a more general and overarching right of free movement enshrined in Article 21 TFEU.107 The retroactive requalification of economic free movement rights as a sub-set of more fundamental citizenship rights belies the occurrence of a paradigm shift in the Union legal order. No longer are Member State nationals afforded rights on the basis of their constituting economic means serving economic ends, but more fundamentally, as Citizens of the Union.

 See for example, Case C-212/06 Government of the French Community and Walloon Government [2008] ECR I-1683, paragraph 59.

107

EU Free Movement of Persons and Member States’ Solidarity Systems: Searching for a Balance Herwig Verschueren 1. Introduction This contribution builds on the analysis, published in the 2007 Volume (9) of the European Journal of Migration and Law, of the definition given by EU (internal) migration law of the boundaries of the solidarity systems of Member States.1 I will recapitulate the main elements of this analysis and focus on the legal developments since then. Formulating answers to the question of who is included in the circle of solidarity of a state and is therefore entitled to national social insurance schemes or financial support from the public finances, traditionally belongs to the prerogative of the individual states. Within the context of the European Union, Member States continue to have the sovereign power to define their social protection systems. Article 153 (2) TFEU empowers the EU to adopt minimum requirements in the field of social security and social protection of workers, but these powers have never been used and there seems to be no political intention to do so. In the absence of harmonization at EU level, the ECJ also continues to confirm that EU law does not detract from the powers of the Member States to organize their social security and social assistance systems. However, the ECJ has always emphasized that the Member States must nevertheless comply with EU law when exercising those powers.2 In particular the principles of free movement of persons (now Articles 21, 45, 49 and 56 TFEU) played and continue to play an important role in this field. These principles are laid down in the relevant secondary legislation. The most important piece of EU legislation is the EU social security coordination system, which until 1 May 2010 was

 H. Verschueren, ‘European (Internal) Migration Law as an Instrument for Defining the Boundaries of National Solidarity Systems’, 9 EJML (2007), p. 307–346. 2   See for instance Case C-158/96, Kohll, [1998] ECR I-1931, para 17–19 and more recent Case C-228/07, Petersen [2008] ECR I-6989, para 42. 1

48  Herwig Verschueren

formalized by Regulation 1408/713 and Regulation 574/724 and from this date by Regulation 883/20045 and Regulation 987/2009.6 Regulation 1612/68 on the free movement for workers7 and Directive 2004/38 on residence rights for EU migrants and the members of their family,8 also play a role in this field. The emphasis of this contribution will be on the discussion that has taken place in recent years, both at the level of the European legislature and at the level of the ECJ, with regard to the definition given by EU law of the scope of basic systems of solidarity guaranteeing a minimum level of subsistence for economically inactive migrants. Here the very boundaries of the national solidarity mechanisms are at stake. My main purpose is to demonstrate the balance that has been struck between the free movement rights, those of economically inactive persons included, and the Member States’ interest in limiting access to their solidarity systems. I will first comment on the recent developments in the ECJ’s case law towards a broad interpretation of the notion of ‘worker’, as a result of which some categories of inactive persons are now considered to be workers as well, and on the effect this has with regard to access to social minimum benefits for these ‘workers’ and the members of their family. Secondly, I will set out to analyse in more detail what the agreement reached in Regulation 883/2004 boils down to regarding the extent to which a Member  State in which an economically inactive migrant person resides is responsible for the payment of the minimum subsistence benefits covered by   Regulation (EEC) 1408/71 of the Council of 14 June 1971 concerning the application of the social security schemes to employees and self-employed persons, as well as to their family members travelling within the Community (hereinafter referred to as ‘Regulation 1408/71’). 4   Regulation (EEC) 574/72 of the Council of 21 March 1972 laying down the procedure for implementing Regulation (EEC) 1408/71. 5   Regulation (EC) 883/2004 of the European Parliament and the Council of 29 April 2004 on the co-ordination of social security systems, OJ L 200, 7 June 2004, 1, as amended by Regulation (EC) 988/2009 of 16 September 2009, OJ L 284, 30 October 2009, 43 (hereinafter referred to as ‘Regulation 883/2004’). See on this regulation the special issue of 11 European Journal of Social Security (2009), p. 1–241. 6   Regulation (EC) 987/2009 of 16 September 2009, OJ L 294, 30 October 2009, 1 (hereinafter referred to as ‘Regulation 987/2009’). 7   Regulation (EEC) 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, OJ L 275, 19 October 1968, 2 (hereinafter referred to as ‘Regulation 1612/68’). 8   Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158, 30 April 2004, 77; 1st corrigendum OJ L 228, 29 June 2004, 35; 2nd corrigendum (only for the English version) OJ L 197, 28 July 2005, 34 (hereinafter referred to as ‘Directive 2004/38’). 3

EU Free Movement and Member States’ Solidarity Systems   49

this regulation. Special attention will be paid to the consequences of this financial responsibility in relation to the application of Directive 2004/38 on the right of residence. Finally, I will comment on the effect the ECJ’s recent case law, based on the notion of European citizenship, has on economically inactive EU citizens’ entitlement to social minimum benefits when they move within the EU. 2.  The Impact of a Broad Definition of ‘Worker’ in EU law on the

Entitlement to Social Minimum Benefits for Economically Inactive Persons As already mentioned in the introduction this contribution focuses on the right to social minimum benefits for economically inactive migrant persons. However, in some circumstances certain categories of economically inactive persons can invoke the EU provisions with regard to the free movement of workers and the principle of equal treatment included in these. For instance, in a number of cases the ECJ also brought jobseekers within the scope of these EU provisions. As a result persons looking for a job in another Member State than their own were able to claim the financial support that a Member State granted its own jobseekers. In Collins the Court held the view that nationals of a Member State seeking employment in another Member State fall within the scope of Article 39 EC (now Article 45 TFEU) on the right to free movement for workers and jobseekers and, therefore, enjoy the right to equal treatment.9 This right also applies to financial benefits intended to facilitate access to employment in the labour market of a Member State.10 The ECJ confirmed this approach in Ioannidis11 and more recently in Vatsouras and Koupatanze (judgment of 4 June 2009).12 So according to this recent case law an economically inactive person like a jobseeker may invoke provisions intitially aimed at workers with regard to the prohibition of discrimination on grounds of nationality on the part of the Member State where this person seeks employment. The ECJ referred in this context to the establishment in Article 17 EC (now Article 20 TFEU) of the EU citizenship.13   Case C-138/02, Collins [2004] ECR I-2703, para 56.   The ECJ acknowledged, however, that it is legitimate for the national legislature to wish to ensure that there is a genuine link between the person applying for such an allowance and the geographic employment market in question. Collins, cited above, note 9, para 63–67. 11   Case C-258/04, Ioannidis [2005] ECR I-8275. 12   Cases C-22/08 and C-23/08, Vatsouras and Koupatanze [2009] ECR I-4585, para 36–37. 13   Collins, cited above, note 9, para 63; Ioannidis, cited above, note 11, para 22 and Vatsouras and Koupatanze, cited above, note 12, para 37.     9 10

50  Herwig Verschueren

Moreover, the European legislator confirmed in Article 7 (3) Directive 2004/38 that an EU citizen can maintain his status as an employee or selfemployed person in certain circumstances, i.e. if he/she is temporarily unable to work as the result of an illness or accident or is in duly recorded involuntary unemployment or embarks on vocational training.14 In these circumstances the person concerned does not only retain the right to reside in the host State, but, on the basis of Article 24 (1) of this directive, he/she can claim the same treatment as the nationals of this host country with regard to all kinds of social benefits. In 2009 the ECJ expressly confirmed this in Vatsouras and Koupatanze concerning a dispute with regard to a German basic benefit in favour of jobseekers.15 Furthermore, the right to access to social minimum benefits also applies to the worker’s or ex-worker’s economically inactive family members, even when they are no longer living together with this worker. Very recently this was illustrated by the judgments of the Court of Justice in Ibrahim and Teixeira of 23 February 2010.16 These cases concerned single mothers who were economically inactive and had applied for housing assistance in the UK. This was denied to them with the argument that their right of residence and that of their children was not based on EU law. To demonstrate that it did rest on EU law, both mothers invoked Article 12 of Regulation 1612/68. This provision grants the children of EU migrant workers the right to access to general education, apprenticeship and vocational training. In these judgments the ECJ confirmed its earlier case law that, pursuant to Article 12 of Regulation 1612/68, the children of an EU citizen who have settled in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there. The fact that the parents of the children concerned have meanwhile divorced and the fact that the parent who exercised rights of residence as a migrant worker is no longer economically active in the host Member State are irrelevant in this regard. It is sufficient that the child settled in the Member State concerned at the time that one of the parents resided there as a migrant worker.17 The Court also ruled that, as a consequence of the right to reside of the children, the parents who are their carers must be allowed

  This provision was inspired by the case law of the Court of Justice: see for instance Case C-413/01, Ninni-Orache [2003] ECR I-13187. 15   Vatsouras and Koupatanze, cited above, note 12, para 31–32. 16   Case C-310/08, Ibrahim, [2010] nyr and Case C-480/08, Teixiera, [2010] nyr. 17   Teixeira, cited above, note 16, para 72 and 74. 14

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to remain in the host Member State during the period of their children’s education.18 All of the above means that these economically inactive family members of a person who at one time worked as a migrant worker in the host country can continue to invoke the status of family members of a worker within the meaning of Regulation 1612/68 with a view to maintaining a right of residence while the children pursue an education. As a result of their EU status as family members of a worker they will also be able to claim the social benefits the host Member State grants its own nationals (such as housing assistance in Ibrahim and Teixeira). From this most recent case law it can be inferred that in quite a number of circumstances migrant persons within the EU, even when they are inactive, can claim rights linked to the status of worker in the host Member State. This also applies to certain family members of such a worker, even when this worker only used to be economically active in this Member State or has meanwhile returned to his Member State of origin. 3.  The Entitlement to Social Minimum Benefits under the European

System of Co-ordination of Social Security Schemes

3.1.  The General Objectives and the Very Broad Personal Scope of the EU Co-ordination System Historically the European system of co-ordination of social security schemes was designed to lift obstacles to the free movement of workers following from the diversity of the social security systems of the Member States. The system put in place is merely a system of co-ordination. It does not seek to harmonize the Member States’ systems or to bring them closer together. The only objective is to co-ordinate them in such a way that possible negative effects of the differences between those systems for migrant persons are removed.19 In the first place, this co-ordination regime determines the Member State of which the social security legislation is applicable in a cross-border situation (Title II of Regulation 1408/71 and of Regulation 883/2004). The starting

  Ibrahim, cited above, note 16, para 50 and Teixeira, cited above, note 16, para 61. See already in Case C-483/99, Baumbast [2002] ECR I-7091, para 63 en 71. 19  See inter alia Case 41/84, Pinna [1986] ECR 1, para 20 and more recently Case C-103/06, Derouin [2008] ECR I-1853, paras 20 and 23; Case C-228/07, Petersen [2008] ECR I-6989, para 41 and Case C-208/07, von Chamier-Glisczinski [2009] ECR I-6095, para 84. 18

52  Herwig Verschueren

points of these rules on the determination of the legislation applicable are the State of employment principle for economically active persons and the State of residence principle for economically inactive persons. Another underlying principle of this co-ordination is that of prohibition of discrimination on grounds of nationality for all benefits covered by the Regulation (Article 3 Regulation 1408/71 and Article 4 Regulation 883/2004). In addition, the co-ordination also contains rules with regard to the waiving of residence clauses in the allocation or preservation of social security benefits (Article 10 Regulation 1408/71 and Article 7 Regulation 883/2004). It also establishes a number of rules with regard to the aggregation of periods of insurance, employment and residence. Also economically inactive persons are covered by this EU co-ordination system, even more so in Regulation 883/2004. Indeed, this regulation refers in the definition of its personal scope to all nationals of a Member State who are or have been subject to the legislation of one or more Member States (Article  2), without referring any longer to the status of employed or selfemployed persons (as was the case in Article 2 of Regulation 1408/71). In 2004 the EU legislature defined the personal scope of the co-ordination system in such a broad manner that almost every citizen of the Member States will be covered by it.20 In addition, Regulation 859/2003 extended the scope of Regulation 1408/71 to persons not having the nationality of the Member States, but residing lawfully on their territory.21 Meanwhile the provisions of the new Regulation 883/2004 also have been extended to third-country nationals by Regulation 1231/2010 of 24 November 2010.22 23

  See among others: Martinsen, ‘Social Security Regulation in the EU: The De-territorialization of Welfare?’, in: De Burca (ed.), EU Law and the Welfare State. In Search of Solidarity, Oxford: University Press 2005, p. 95–96; and Pennings, ‘Inclusion and Exclusion of Persons and Benefits in the New Co-ordination Regulation’, in: Spaventa and Dougan (eds.), Social Welfare and EU Law, Oxford: Hart 2005, p. 245–246. 21  Regulation (EC) 859/2003 of the Council of 14 May 2003 extending the provision of Regulation 1408/71 and Regulation 574/72 to national of third countries who are not already  covered by those provisions solely on the ground of their nationality, OJ L 124, 20 May 2003, 1. 22   Regulation (EU) 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, OJ L 344, 29 December 2010, 1. 23   In accordance with the relevant Protocols, Ireland has decided to apply this regulation, but the United Kingdom has not done so. Just as with Regulation 859/2003 Denmark will not apply Regulation 1231/2010 either (see Recitals 17, 18 and 19 to Regulation 1231/2010). 20

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Consequently, the large majority of the persons residing in the territory of a Member State, irrespective of whether they are citizens of the Member States or citizens of third countries, are covered by Regulation 883/2004. 3.2.  The Right to Minimum Subsistence Benefits in Regulation 883/2004: Export or Entitlement in the State of Residence? One of the underlying principles of European social security co-ordination is the waiving of residence clauses or the right to export benefits.24 For some social security branches (such as pensions) this principle of export is rarely disputed. For others, however, it remains controversial (for instance for family benefits25) or even limited by EU law itself by way of exception (such as for unemployment benefits26). It is clear, however, that Member States still do not like paying benefits to persons not residing on their territory. National social security systems remain to be built on the principle of territoriality. This is certainly the case for noncontributory tax-financed benefits, such as social assistance and other minimum subsistence benefits, the levels of which are determined by the cost of living in each Member State. Confronted with claims to export a number of minimum subsistence benefits, the ECJ had to rule on the question whether they fall under the notion of social assistance of Article 4(4) of Regulation 1408/71 (now Article 3(5) of Regulation 883/2004) and are therefore excluded from export on the basis of this regulation. These benefits were called special non-contributory benefits of a mixed kind since they were half way between traditional social security and social assistance. Examples of such benefits are supplements to pensions  and special benefits for disabled or invalid persons. In its case law of the 1970s and 80s, the ECJ developed a broad definition of social security within the meaning of Regulation 1408/71. This also included these special non-contributory benefits to which the ECJ applied the export provision.27

  Article 7 Regulation 883/2004.   See for instance Pinna, cited above, note 19. See more recently Case C-212/05, Hartmann [2007] ECR I-6303; Case C-213/05, Geven [2007] ECR I-6347 and Case C-363/08, Slanina [2009] ECR I-11111. 26   Article 64 of Regulation 883/2004. See on the export of unemployment benefits also Case C-406/04, De Cuyper [2006] ECR I-6947 and Case C-228/07, Petersen [2008] ECR I-6989. 27   See for instance Case 1/72, Frilli [1972] ECR 457 (on the Belgian ‘Guaranteed income for old people’); Case 187/73, Callemeyn [1974] ECR 553 (on the Belgian ‘Benefits to handicapped persons’); Case 63/76, Inzirillo [1976] ECR 2057 (on the French ‘Allowance for handicapped adults’); Case 139/82, Piscitello [1983] ECR 1427 (on the Italian ‘Social aid pensions’); 24 25

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In response to this case law, the EU legislature intervened in 1992 by creating a special co-ordination system for these benefits.28 For the benefits listed in the newly created Annex IIa of Regulation 1408/71, Member States could apply a residence condition preventing the export of these benefits. As a consequence a beneficiary of such a benefit would, on the one hand, lose it when transferring his residence to another Member State and would, on the other, be entitled in his new Member State of residence to benefits of that state listed in Annex IIa.29 The justification for limiting the export of these benefits was mainly that they were not based on the payment of contributions by the beneficiary and that they were meant to guarantee a level of subsistence taking into account the cost of living and integration in a particular Member State. It was nonetheless clear that the loss of these benefits would create an evident obstacle to the right of free movement, as there is no guarantee that the person concerned would be entitled to similar benefits in the new host Member State. Comparable benefits may not exist there or not be listed in Annex IIa. Loss of such benefits could moreover jeopardize the person’s right of residence in the new Member State, as the residence Directives of 1990 and 199330 applicable to economically inactive persons only guaranteed a residence right in another Member State if the person concerned has sufficient resources to avoid becoming a burden on the social assistance system of the host Member State. In Jauch31 and Leclere32 the Court examined the question of whether the  specific co-ordination regime was compatible with the principle of free movement in the EC Treaty. The Court did not actually criticize the European Joined Cases 379–381/85 and 93/86, Giletti and others [1987] ECR 955 (on the French ‘Supplementary allowance’ paid to the recipients of old-age, survivor’s and invalidity pensions by the national solidarity fund); Case C-356/89, Newton [1991] ECR 3017 (on the UK ‘Mobility allowance’ for the disabled). 28   By Regulation (EEC) No 1247/92 of the Council of 30 April 1992, OJ L 192, 19 May 1992, 1. 29   See in more detail on this discussion: Van der Mei, ‘Regulation 1408/71 and co-ordination of social non-contributory benefit schemes’, 27 EL Rev. (2002), p. 551–566 and Verschueren, ‘Special Non-Contributory Benefits in Regulation 1408/71, Regulation 883/2004 and the Case Law of the ECJ’, 11 European Journal of Social Security (2009), p. 217–234. 30   Directive 90/364 of 28 June 1990 on the right of residence, OJ L 180, 13 July 1990, 26; Directive 90/365 of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity, OJ L 180, 13 July 1990, 28 and Directive 93/96 of 29 October 1993 on the right of residence for students, OJ L 317, 18 December 1993, 59. 31   Case C-215/99, Jauch [2001] ECR I-1901, on the Austrian ‘Care Allowance’ (‘Pflegegeld’). See on a comparable Austrian benefit: Case C- 286/03, Hosse [2006] ECR I-1771. 32  Case C-43/99, Leclere [2001] ECR I-4265 on the Luxembourg ‘Maternity allowances’ (‘Allocation de maternité’).

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legislature for the introduction of the residence requirement for this kind of benefits. Indeed, the ECJ recognized the justification for limiting the export of these benefits, mainly because they are not based on the payment of contributions by the beneficiary and also because they are meant to guarantee a level of subsistence with regard to the cost of living and integration in a particular Member State. Yet the Court did examine whether or not the Austrian and Luxembourg benefits involved in these cases had been included rightfully in the list of non-exportable benefits. It considered that the two benefits under discussion did not respond to the criteria of being ‘special’ and of a ‘mixed kind’. Therefore their listing in Annex IIa was declared invalid since it was contrary to Article 39 EC (now Article 45 TFEU). For the Court, derogations from the principle of the exportability of social security benefits must be interpreted strictly. This means that they can apply only to benefits which fulfil the conditions they define.33 The Court confirmed this approach in Skalka,34 Kersbergen-Lap35 and Perez Naranjo,36 although in these cases it did validate the listing of the disputed benefits in Annex IIa. Further to this case law the provisions on the special non-contributory benefits were completely redrafted in the abovementioned new Regulation 883/2004. Since Regulation 883/2004 would only come into force at a later date (1 May 2010) and the matter was so urgent, the agreement on the definition and status of these benefits in Regulation 883/2004 was already integrated in Regulation 1408/71 by Regulation 647/2005, including a complete revision of the list in Annex IIa of Regulation 1408/71 in accordance with the new requirements, inspired by the ECJ’s case law.37 The relevant Annex X of

  Case C-215/99, Jauch [2001] ECR I-1901, paras 20–21.   Case C-160/02, Skalka [2004] ECR I-5613, on the Austrian ‘Compensatory supplement to pensions’ (‘Ausgleichzulage für Alterspensionen’). 35   Case C-154/05, Kersbergen-Lap [2006] ECR I-6249 on the Dutch ‘Incapacity benefit for disabled young people’ (‘Wajong’). 36   Case C-265/05, Perez Naranjo [2007] ECR I-347 on the French ‘Supplementary allowance from the National Solidarity Fund’ (‘Allocation supplémentaire du Fonds national de solidarité’). 37   Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, OJ L 117, 4 May 2005, 1. However, following the request of the European Commission the ECJ again annulled the listing by Regulation 647/2005 of some of these benefits in Annex IIa of Regulation 1408/71 in its ruling of 18 October 2007: Case C-299/05, Commission v. European Parliament and Council ECR [2007] ECR I-8695. The listed benefits were: the Finnish ‘Child care allowance’, the Swedish ‘Disability allowance and care allowance for disabled children’ and the UK ‘Disability Living Allowance, ‘Attendance Allowance’ and ‘Carer’s Allowance’. 33 34

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Regulation 883/2004 was only integrated in this Regulation by Regulation 988/2009.38 Evidently, the non-export of a benefit can still constitute a significant obstacle to the movement of persons within the Union. This is particularly so if they are not able to claim in their new state of residence a benefit similar to the one lost. It is therefore understandable that much of the attention in these debates went to the question of the exportability of the benefits concerned. However, in the context of the definition of the boundaries of national minimum subsistence benefits, it is maybe even more important to realize that this special co-ordination regime for non-contributory benefits listed in Annex X of Regulation 883/2004, is also defining the condition under which a person coming from a certain Member State and settling in another one, is entitled, in his new Member State of residence, to the mixed type benefits this Annex X lists. Article 70 (4) of Regulation 883/2004 indeed confirms that the special non-contributory cash benefits listed in Annex X shall be provided exclusively in the Member State in which the persons concerned reside at the expense of this Member State’s institutions. This means that on the basis of Regulation 883/2004 persons falling under the (broad) scope of this regulation are entitled to the social minimum benefits included in this list in the Member State where they reside. The only requirement for entitlement to these benefits is being resident. Furthermore any residence requirement in national law must be compatible with the residence requirement as it is to be understood in the context of the application of Regulation 883/2004. Therefore the ECJ gave a Community-wide definition of residence within the meaning of Regulation 1408/71.39 This idea was taken over in Article 11 of Regulation 987/2009 which calls upon the Member States in case of disagreement on where the residence of a person lies, to establish by common agreement the centre of interest of the person concerned. The EU legislature clearly accepts the idea of an EU notion of residence, as being the place were the centre of interest of the person concerned is situated, which should be established in such a way that the person involved does not fall between two stools.

  Regulation (EC) No 988/2009 of the European Parliament and the Council of 16 September 2009, OJ L 284, 30 October 2009, 43. The list of Annex X currently contains about 70 benefits, including for instance the Belgian guaranteed income for elderly persons, the German Basic subsistence income for the elderly, the Spanish Cash benefits to assist elderly and invalids unable to work, the Irish Disability allowance, the Italian Social pensions for persons without means, the Hungarian Non-contributory old age allowance, the Finnish Housing allowance for pensioners and the UK’s State Pension Credit. About 2/3 of these benefits are related to old age, invalidity or disablement. 39   Case C-90/97, Swaddling [1999] ECR I-1075. 38

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4.  Relationship between the EU Social Security Co-ordination for

Minimum Subsistence Benefits and Residence Directive 2004/38

In the discussion on the special mixed type minimum subsistence benefits, the boundaries of Member States’ solidarity systems were defined by the principles underlying European migration law, in particular the free movement of persons. But the outcome of these discussions as agreed by the EU legislature, might in turn affect the implementation of European migration law itself. Indeed, the special co-ordination system for non-contributory cash benefits may have direct implications for the implementation of the EU provisions on the free movement of citizens, in particular those of residence Directive 2004/38. In this directive the right of residence for up to three months is granted to all Union citizens without any conditions or any formalities other than the requirement to hold a valid identity card or passport (Article 6(1) ). However, by virtue of Article 24 (2) of this directive the host Member State is not obliged to confer entitlement to social assistance during the first three months of residence or during the period (which may very well exceed three months) a jobseeker continues to seek employment and has a genuine chance of being engaged. Still, the recent rulings in Vatsouras and Koupatanze of 4 June 2009 show that the Court of Justice gives a narrow interpretation to the concept of ‘social assistance’ within the meaning of this provision. In these rulings the Court decided for instance that benefits of a financial nature which, independent of their status under national law, are intended to facilitate access to the labour market cannot be regarded as constituting ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38.40 The right of residence for more than three months for economically inactive persons is moreover subject to the following conditions. They have to have sufficient resources for themselves and their family members so as not to become a burden on the social assistance system of the host Member State as well as a comprehensive sickness insurance (Article 7(1), b and c). This is generally seen as a way of preventing a person not involved in economic life from relying on public funds in the state of residence. Article 14 (2) of Directive 2004/38 confirms the residence right to Union citizens and their family members as long as they meet the conditions set out in Article 7 which for economically inactive persons means having sufficient resources. Nevertheless, Article 14(1) of Directive 2004/38 guarantees the retention of the right of residence to Union citizens as long as they do not   Vatsouras and Koupatanze, cited above, note 12, para 45.

40

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become an unreasonable burden on the social assistance system of the host Member State. Questions are raised on the relationship between these provisions of Directive 2004/38 and the entitlement, based on residence, to the minimum subsistence benefits listed in Annex X of Regulation 883/2004. In spite of the Court of Justice’s narrow interpretation of the concept of ‘social assistance’ in Directive 2004/38, it is still possible that a number of the benefits listed in Annex X of Regulation 883/2004 could very well be classified as social assistance within the meaning of Directive 2004/38. In this context income support for retired or disabled persons comes to mind. Consequently the following question on the relationship of Directive 2004/38 and Regulation 883/2004 becomes relevant: which legal instrument should take precedence? Are persons wanting to invoke Regulation 883/2004 in order to claim a minimum subsistence benefit in the Member State in which they reside, putting their right of residence at stake because they no longer fulfil the requirements necessary for the right to reside in the host State under Directive 2004/38? Or is it just the opposite: are persons entitled to a minimum subsistence benefit of the host Member State under Regulation 883/2004, automatically fulfilling the subsistence requirement for obtaining or maintaining residence rights under Directive 2004/38? The above discussed provisions of Regulation 883/2004 which grant access to non-contributory minimum benefits in the State of residence, in no manner refer to the residence requirement as being a requirement for which the legal status of the residence would be relevant. Neither do they make their application subject to the fulfilment of the criteria for obtaining a residence right under Directive 2004/38 or its predecessors. From the absence of any reference in Regulation 883/2004 to a person’s status under the residence directive, it follows that entitlement to the minimum subsistence benefits listed in Annex X of Regulation 883/2004 only depends on the condition of a person having in fact his habitual centre of interest in a Member State and not on the legal nature of this residence under Directive 2004/38. Any person habitually resident within the meaning of Regulation 883/2004 is entitled to these benefits on the basis of this EU legal instrument (provided of course he fulfils the other relevant criteria under the national legislation, such as an income threshold). As a result, this person can be entitled to a minimum subsistence benefit of the host State by nothing more than relying on the provisions of Regulation 883/2004, provided this benefit is listed in Annex X to Regulation 883/2004. As soon as he has obtained the benefit, he will most probably fulfil the subsistence requirement under Directive 2004/38 for obtaining or maintaining a residence right in the host State. As a result, Regulation 883/2004 and its

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provisions on the co-ordination of minimum subsistence benefits could enable EU-citizens moving from one Member State to another to obtain sufficient income in the host State in order to fulfil the subsistence requirement for obtaining a residence right in that host State. This seems to be logical. Any other conclusion would make this special coordination system meaningless. If migrant persons would have to prove first that their residence in the host State is in line with the subsistence requirement under Directive 2004/38 before they could claim a minimum subsistence benefit under Regulation 883/2004, it would never be possible for them to do so. Indeed, when applying for a minimum subsistence benefit they would demonstrate that they no longer fulfils the condition concerning the sufficiency of resources under Directive 2004/38. In this hypothesis they would put their right of residence into danger by claiming a benefit listed in Annex X of Regulation 883/2004, which of course would undermine the effet utile of the provisions of Regulation 883/2004. Besides, as explained above, by transferring their residence from one Member State to another, these persons lose the entitlement to an Annex X benefit in the first Member State. Refusing them a similar benefit in the second Member State on the basis of Directive 2004/38 would amount to them falling between two stools. Moreover, the abovementioned provisions of Directive 2004/38 aim at preventing an EU citizen from becoming an unreasonable burden on the social assistance system of the host Member State.41 It would be absurd to consider relying on EU Regulation 883/2004 for the application of a minimum subsistence benefit listed in its Annex X as being unreasonable.42 Furthermore, the ECJ confirmed that the origin of a person’s resources is not relevant to assess the fulfilment of the resources requirement in the residence directives.43 The ECJ even considered it being contrary to EU law that a   See recital No. 16 in the preamble to this Directive.   Dougan considers this point as ‘not yet been clarified’: Dougan, ‘Expanding the Frontiers of Union Citizenship by Dismantling the Territorial Boundaries of the National Welfare States’, in: Barnard and Odudu (eds.), The Outer Limits of European Law, Oxford: Hart Publishing 2009, p. 138. O’Brien on the contrary seems to disagree with my opinion on this point as explained in the 2007 Volume (9) of the European Journal of Migration and Law. See: ‘Real Links, abstract rights and false alarms: the relationship between the ECJ’s ‘real link’ case law and national solidarity’, 33 EL Rev. (2008), p. 648–649. However, O’Brien seems to have overlooked that my submission was limited to those minimum subsistence benefits listed in Annex X of Regulation 883/2004 (at that time Annex IIa of Regulation 1408/71). For the entitlement to other minimum subsistence benefits and the consequences of claiming them for the residence rights of economically inactive EU migrants see further under point 5. 43   Case C-200/02, Zhu and Chen, [2004] ECR I-9925, para 30–31. See also Case C-408/03, Commission v. Belgium [2006] ECR I-2647, para 40. 41 42

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Member State requires inactive and retired EU nationals to prove that they have sustainable resources in order for them to obtain a residence permit.44 These conclusions seem to be reinforced by the recent ECJ’s judgments of 23 Febuary 2010 in Teixeira and Ibrahim in which the ECJ recalled that according to recital 3 in the preamble to Directive 2004/38, the aim of that directive is inter alia to simplify and strengthen the right of free movement and residence of all Union citizens. The ECJ rejects the argument that since the application of Directive 2004/38 rights for migrant persons would be subject to stricter conditions than those which applied to them before the entry into force of this Directive.45 This reasoning also seems to be valid for economically inactive migrants’ entitlement to the social minimum benefits listed in Annex X of Regulation 883/2004. 5.  Access to Minimum Subsistence Benefits Not Covered by the Social

Security Co-ordination

When drafting the rules of Regulation 833/2004 on access to the minimum subsistence benefits covered thereby, the EU legislature apparently considered residing in a Member State as being a sufficient condition for that access. In fact, there was very little debate on this point; a logical consequence of no longer obliging Member States to export these benefits and of preventing migrant persons from falling between two stools. By contrast, there has been much more discussion on migrant persons’ access to minimum subsistence benefits not covered by the EU social security co-ordination. Indeed, in recent years the right under EU law to these benefits for economically inactive persons moving from one Member State to another was highly debated before the ECJ and in academic literature. 5.1.  Developments in the ECJ’s Case Law on EU Citizenship The discussion was initiated by ECJ case law on the impact of EU citizenship (as introduced by the Maastricht Treaty; now Articles 20 and 21 TFEU), on the entitlement to minimum subsistence benefits in the host Member States for persons moving within the Union.

  Case C-398/06, Commission v Netherlands, [2008] ECR I-56 (summary publication).   Ibrahim, cited above, note 16, para 49 and Teixeira, cited above, note 16, para 60. See previously already: Case C-127/08 Metock and Others [2008] ECR I-6241, para 59.

44 45

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The initial impetus was given by the ECJ ruling in Martinez Sala.46 The Court recognized that nationals of a Member State lawfully residing in another Member State come within the scope of EU law and its rights and duties, including the right in Article 12 EC (now Article 18 TFEU) not to suffer discrimination on grounds of nationality. A non-contributory child-raising allowance was considered by the Court to fall within this scope and therefore it concluded that a condition in German law for the acquisition of this benefit which was only applicable to non-German nationals, was contrary to EU law. This approach was confirmed in Grzelczyk.47 A French student, in the fourth year of his studies, claimed minimex in Belgium which is a minimum subsistence allowance. In the view of the Court Mr. Grzelczyk made use of his right to move and reside freely within the Union and therefore on the basis of Articles 12 and 17 EC (now Articles 18 and 20 TFEU) could claim equal treatment with the nationals of the host Member State, including the minimex. For the Court, Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law, irrespective of their nationality, only subject to such exceptions as are expressly provided for. In this judgment the Court acknowledged that having recourse to the host State’s social assistance schemes could be a basis for that State to withdraw the student’s residence permit, but the Court also stated that such a measure was not allowed to become an automatic consequence of his financial problems. In the Court’s view the residence directives for economically inactive persons envisage that beneficiaries of the right of residence must not become an unreasonable burden on the public finances, and thus it accepts a certain degree of financial solidarity between nationals of the host Member State and nationals of other Member States, particularly if the financial difficulties of the student are temporary. The Court thereby introduced the element of proportionality to be respected by Member States when deciding on the application for a basic non-contributory social benefit by an economically inactive citizen of another Member State. In Trojani48 the Court continued the same line as in Grzelczyk with regard to the Belgian minimex, this time for a person who was inactive without being a student. The Court recognized in Trojani that a person who does not have sufficient resources can, in principle, not acquire a residence right under EU law. Nevertheless, if such a person has been lawfully resident in the host

  Case C-85/96, Martinez Sala [1998] ECR I-2691.   Case C-184/99, Grzelczyk [2001] ECR I-6193. 48   Case C-456/02, Trojani [2004] ECR I-7573. 46 47

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Member State for a certain time or possesses a residence permit he may rely on Article 12 EC (now Article 18 TFEU), including with a view to claiming social assistance. And even if in these circumstances the host Member State may take measures to remove this person, these measures may not automatically be entailed by recourse to its social assistance system. The Court again referred to the principle of proportionality. It is also clear from this case that legal residence in a Member State, which seems to be the basis for relying on Article 12 EC (now Article 18 TFEU), is not limited to legal residence based on EU law, but may also be legal residence based on national law. The same line of reasoning was followed by the Court in cases on basic financial assistance for jobseekers. In D’Hoop49 the Court denounced the linking of ‘tideover allowance’ for young jobseekers in Belgium to the condition of having obtained the required diploma in Belgium. In Collins50 (on the UK’s ‘jobseeker’s allowance’) the ECJ took Article 39 EC (now Article 45 TFEU) as the legal basis for examining the ‘habitual residence’ condition in UK law, thus considering jobseekers as falling under this Treaty provision. Such a residence requirement is capable of being met more easily by the State’s own nationals and is therefore indirectly discriminatory on grounds of nationality. The ECJ acknowledged it being legitimate for a Member State to grant such an allowance only after it had been possible to establish that a genuine link exists between the person seeking work and the employment market of that State. But the application by national authorities must rest on clear criteria known in advance and provision must be made for the possibility of means for redress of a judicial nature. In Bidar51 the Court checked Article 12 EC (now Article 18 TFEU) with regard to the refusal to grant migrant students financial assistance to cover their maintenance cost on the basis of the condition of having previously resided for at least three years in the Member State concerned (the UK). Here again such a requirement risks putting nationals of other Member States at a disadvantage and therefore needs justification. The ECJ considered it legitimate for a Member State to grant such assistance only to students who have demonstrated a certain degree of integration in the society of the host State. This could be regarded as established after being resident for a certain length of time. The Court seemed to consider the three-year residence requirement in the UK legislation as corresponding to the legitimate aim of ensuring a certain degree of integration.

  Case C-224/98, D’Hoop [2002] ECR I-6191.   Case C-138/02, Collins [2004] ECR I-2703. 51   Case C-209/03, Bidar [2005] ECR I-2119. 49 50

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More recently the ECJ found in Förster52 that a condition of five years’ uninterrupted residence is appropriate and proportionate for the purpose of guaranteeing that the student applying for a maintenance grant is integrated in the host Member State’s society. The ECJ explicitly referred to Directive 2004/38 which, although not applicable to the facts in the main proceedings, provides in Article 24(2) that in the case of persons other than workers, self-employed persons, persons who retain such status and members of their families, the host Member State is not obliged to grant maintenance assistance for studies, including vocational training, consisting in student grants or student loans, to students who have not acquired the right of permanent residence (after 5 years of legal residence – Article 16(1) Directive 2004/38). In cases concerning the retention of a benefit by a beneficiary who went to live in another Member State, the Court of Justice also applied the right of free  movement of persons. In Tas-Hagen,53 Nerkowska54 and ZablockaWeihermüller,55 residence clauses in national legislation regarding benefit schemes for victims of war or its consequences came under discussion. The Court stated that, taking into account the close link the persons concerned used to have with the Member State that awarded these benefits, cutting off these benefits because the person concerned did not reside (or no longer resided) in this Member State would amount to an unjustified obstacle to the implementation of the right of free movement as guaranteed in Article 18 EC (now Article 21 TFEU). In De Cuyper56 and Petersen57 the Court examined whether in these specific cases the limitations to the export of unemployment benefits laid down in Regulation 1408/71 were still in accordance with the principles of Articles 18 and 39 EC (now Articles 21 and 45 TFEU). In De Cuyper the Court reached the conclusion that there was no problem regarding the non-exportability of the unemployment benefit under discussion in this case. Conversely, in Petersen the Court did find that the non-exportability in  the unemployment benefit disputed in this case was inconsistent with the treaty.58

  Case C-158/07, Förster [2008] ECR I-8507.   Case C-192/05, Tas-Hagen and Tas [2006] ECR I-10451. 54   Case C-499/06, Nerkowska [2008] ECR I-3993. 55   Case C-271/07, Zablocka-Weihermüller [2008] ECR I-9029. 56   Case C-406/04, De Cuyper [2006] ECR I-6947. 57   Case C-228/07, Petersen [2008] ECR I-6989. 58   Considering the fact that the emphasis of this contribution is on the access to minimum subsistence benefits in the host State of the economically inactive EU migrant persons, we will not pursue those cases in which the export of benefits was the central point. See for more details about the recent discussion in the case law on the export of benefits: Dougan, 52 53

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In the aforementioned cases on access to minimum subsistence or basic social benefits in the host State, the starting point of the ECJ was the question of how to guarantee the rights of EU citizens, including the economically inactive ones, to move and reside freely within the Union. A central element in this is the possibility for these persons to rely, as migrant persons, on the prohibition of discrimination on grounds of nationality. Even if secondary EU legislation puts some limitations on these rights and national law introduces some requirements potentially discriminatory for migrant EU citizens, such limits must stand the proof of proportionality. This follows from the principle of free movement as laid down in Article 21 TFEU (former 18 EC) which was declared as having direct effect by the ECJ already in Baumbast.59 For the ECJ the right to reside is conferred directly upon every citizen of the Union by the clear and precise provision of Article 21 TFEU. Consequently, any limitations and conditions imposed on that right are subject to the necessity and proportionality test, even if they are of a non-discriminatory nature.60 In several cases Member States were considered to fall short in complying with these principles of EU law when defining the national boundaries to their tax-funded basic social benefits, identified by the ECJ as unjustified (direct or indirect) discrimination on grounds of nationality or as an unjustified non-discriminatory restriction to the right to free movement, even for economically inactive migrants. 5.2.  Did the ECJ Find the Right Balance? The above described developments in EU law have been very much debated. According to some commentators the Court has been interpreting EU law against its wording and purpose while using the proportionality principle to establish rights which do not exist yet.61 Others advocated that the distinction between economically active persons who contribute to the host society  and  economically inactive persons should be maintained. Traditionally,

‘Expanding the Frontiers of Union Citizenship by Dismantling the Territorial Boundaries of the National Welfare States’, in: Barnard and Odudu (eds.), The Outer Limits of European Law, Oxford: Hart Publishing 2009, p. 119–165. 59  Case C-413/99, Baumbast [2002] ECR I-7091, para 84–86. See also Case C-408/03, Commission v. Netherlands [2006] ECR I-2647, para 34. 60   Such as in Tas-Hagen and Tas, cited above, note 53. 61   This view is expressed by Golynker, ‘Jobseekers’ rights in the European Union: challenges of changing the paradigm of social solidarity’, 30 EL Rev. (2005), 120, and Hailbronner, ‘Union citizenship and access to social benefits’, 42 CML Rev. (2005), p. 1245–1267.

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for the latter only a limited integration in the host Member State is guaranteed, unless the competent legislature should decide otherwise.62 Scholars also pointed at the right for Member States to protect themselves against interference from the EU level in the definition of the boundaries of their basic welfare systems or considered this case law as being counterproductive since it risks promoting abuse and social benefit tourism.63 National welfare systems would not be based any longer on bona fide ties, loyalties and contributions towards the host society.64 Some commentators take the view that the Court embarked on a top-down judicially led process of social engineering which touches upon the underlying moral fabric of national solidarity systems,65 or risks compromising the legitimacy of any idea of ‘European social citizenship’.66 Some even feel that this could undermine deep seated social and political equilibriums with social and political consequences that are not fully predictable.67 Identifying the subjective and individualistic rights of EU migrants could interfere with the Member States’ political choices of commutative justice.68 Others consider the ECJ’s case law as ‘judicial activism’, going against the will of the legislature.69 The constitutional implications of the

 Hailbronner, supra note 61, p. 1265 and Martin, ‘De Martinez Sala à Bidar, les paradoxes de la jurisprudence sur la libre circulation des citoyens’, in: Carlier and Guild (eds.) The Future of Free Movement of Persons in the EU, Brussels: Bruylant 2006, p. 163 and 166–167. 63   As suggested by: Larkin, ‘The Limits to European Social Citizenship in the United Kingdom’, 68 ML Rev. (2005), p. 440–442, and Straetmans, ‘Non-economic free movement of European Union citizens and family law matters. Does the internal market have any limit?’, in: Meeusen, Pertegas, Straetmans and Swennen (eds.), International Family Law for the European Union, Antwerpen and Oxford: Intersentia 2007, p. 237. 64  Golyncker, supra note 61, p. 121. This author even talks about ‘changing paradigm of social solidarity’. 65   Dougan, ‘The Court helps those who help themselves… The legal status of migrant workseekers under Community law in the light of the Collins judgment’, 7 European Journal of Social Security (2005), p. 18. 66   Dougan, ‘The Spatial Restructuring of National Welfare States within the European Union: The contribution of Union Citizenship and the Relevance of the Treaty of Lisbon’, in: Neergaard, Nielsen and Roseberry, Integrating Welfare Functions into EU Law. From Rome to Lisbon, Copenhagen: DJOF Publishing 2009, p. 162–164. 67   Ferrera, ‘Towards an “Open” ’ Social Citizenship. The New Boundaries of Welfare in the European Union’, in: De Burca, EU Law and the Welfare State. In Search of Solidarity, Oxford: University Press 2005, p. 24. 68   José Menéndez, ‘European Citizenship after Martinez Sala and Baumbast: Has European Law Become More Human but Less Social?’, in: Poiares Maduro and Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty, Oxford: Hart Publishing 2010, p. 391–392. 69  Hailbronner, supra note 61, p. 1251. 62

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way the ECJ obliges Member States’ administrations and judiciary to apply the necessity and proportionality test to limitations, both in national and in EU law, on access for economically inactive EU migrants to social minimum benefits, have been questioned as well.70 Commenting the above discussed case law of the ECJ, some plead for a rather slow process of transnational solidarity, in order to avoid the risk of undermining the willingness of the host state’s ‘taxpayer’ to support the idea of European citizenship.71 According to this criticism this case law could undermine the psychological glue which binds the national welfare systems and provides their moral sustenance, their legitimacy still being determined by a sense of social solidarity based upon a shared identity and common interest, usually membership of a national community.72 Those who claim solidarity in a particular Member State should in one way or another have contributed to its financing.73 In response to this criticism we would like to point out that the ECJ is actually taking a traditional ‘functional approach’ in its interpretation of the Treaty provision on free movement of persons. In this case law Union citizenship indeed appears to be an instrument to increase mobility within the EU.74 In the past this functional approach guaranteed migrant workers equal treatment as regards almost all rights and benefits which are available to workers and residents of the host Member State.75 In the abovementioned case law the Court extended this functional approach to all EU citizens whether they exercise an economic activity or not, giving full effectiveness to the right to move

  Ibidem, p. 176–181.   Barnard, ‘EU Citizenship and the Principle of Solidarity’, in: Spaventa and Dougan, Social Welfare and EU Law, Oxford: Hart 2005, 174–175. This position seems to be supported by several other commentators like Dougan and Spaventa, ‘ “Wish You Weren’t Here…”. New Models of Social Solidarity in the European Union’, in: Spaventa and Dougan (eds.), Social Welfare and EU Law, Oxford: Hart 2005, p. 183 and 191; Golynker, supra note 61, p. 121; Reich, ‘The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union’, 11 EL Journ. (2005), p. 698, and Straetmans, supra note 63, p. 237. 72   Dougan, ‘The constitutional dimension to the case law on Union citizenship’, 31 EL Rev. (2006), p. 623. See also NNS, ‘Editorial. Three paradoxes of EU citizenship’, 35 EL Rev. (2010), p. 129–130. 73   See Arnull, The European Union and its Court of Justice, Oxford: University Press 2006, p. 530; Dougan, ‘Fees, Grants, Loans and Dole Cheques; Who Covers the Costs of Migrant Education within the EU?’, 42 CML Rev. (2005), p. 943 and Hailbronner, supra note 61, p. 1264–1266. 74  Spaventa, ‘The Constitutional impact of Union Citizenship’, in: Neergaard, Nielsen and Roseberry (eds.), The Role of Courts in Developing a European Social Model. Theoretical and Methodological Perspectives, Copenhagen: DJOF Publishing 2010, p. 165. 75   Confirmed recently in Case C-152/05, Commission v Germany [2008] ECR I-39 para 30. 70 71

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and reside freely within the Union enshrined in Article 21 TFEU.76 However, the Court did not allow economically inactive migrants unconditional access to welfare benefits of the host State. Legal residence in the host State is the first condition to be fulfilled by the applicant. In addition and depending on the case, s/he should ‘not become an unreasonable burden on the public finances’,77 ‘have a genuine link with the employment market of the State concerned’,78 or ‘need to demonstrate a certain degree of integration into the society of the host State’.79 Traditionally justifications like these are even outlawed by the classic four economic freedoms’ legal regime.80 The ECJ moreover stated that, ‘with regard to benefits that are not covered by Community law, Member States enjoy a wide margin of appreciation in deciding which criteria are to be used when assessing the degree of connection to society, while at the same time complying with the limits imposed by Community law’.81

The ECJ furthermore recognizes the right of the host Member State to terminate the right of residence of the persons concerned, although this should not become the automatic consequence of reliance on the social assistance system.82 The Court makes it clear that Articles 18 and 12 EC (now Articles 21 and 18 TFEU) cannot be a ‘letter of safe conduct’ for social tourism.83 It would seem that the requirement of a genuine link with the host Member State is designed to accommodate the concerns of Member States.84 As Currie argued:   See also: Ach, ‘La citoyenneté européenne au service d’une Europe sociale’, Journal des tribunaux droit européen (2006), p. 133–134; Lenaerts and Heremans, ‘Contours of a European Social Union in the Case-Law of the European Court of Justice’, 2 European Constitutional Law Review (2006), p. 103; Timmermans, ‘Martinez Sala and Baumbast revisited’, in: Poiares Maduro and Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty, Oxford: Hart Publishing 2010, p. 348–349 and Van der Mei, ‘Union Citizenship and the ‘De-Nationalitsation’ of the Territorial Welfare State’, 7 EJML (2005), p. 207–209. 77   Grzelczyk, cited above, note 47, para 44. 78   Collins, cited above, note 50, para 67–69. 79   Bidar, cited above, note 51, para 57. See also Förster, cited above, note 52, para 54. 80   See: Besson and Utzinger, ‘Introduction: Future Challenges of European Citizenship – Facing a Wide-Open Pandora’s Box’, 13 EL Journ. (2007) p. 587, referring to Gebhard Case C-55/94 [1995] ECR I-4165; MacQueen Case C-108/96, [2001] ECR I-837 and CaixaBank Case C-442/02, [2004] ECR I-8961. 81   Tas-Hagen and Tas, cited above, note 53, para 36 and Nerkowska, cited above, note 54, para 38. 82   Grzelczyk, cited above, note 47, para 43 and Trojani, cited above, note 48, para 36. 83   Lenaerts and Heremans, supra note 76, p. 195. 84   Giubboni, ‘Free Movement of Persons and European solidarity’, 13 EL Journ. (2007), p. 371– 372; White, ‘Free movement, equal treatment, and citizenship of the Union’, 54 International and Comparative Law Quarterly (2005), p. 905. 76

68  Herwig Verschueren ‘The ECJ has clearly sought to strike a balance by incorporating the test of proportionality, which includes consideration of the individual’s particular circumstances, and the concept of unreasonable burden, which allows Member States to protect the national welfare system from excessive reliance on the right to equal treatment by non-economic migrants resident in their territory’.85

She considers the ‘genuine link’ test as another method to strike a fair balance between rights of economically inactive migrants and the legitimate interest of the Member States to protect their national welfare systems.86 O’Brien points out that the Court’s role is to police the procedure by which real links are required and ascertained, meaning that the decision-making procedure must be rational (reflecting some consideration of material circumstances), appropriate (depending on the status of the claimant), accurate and flexible.87 The economically inactive Union Citizen’s claim to equal treatment is indeed not boundless and contrasts with the legal position of market actors, who can avail themselves of an almost unconditional right to equal treatment as far as access to social benefits is concerned.88 This balanced approach seems to be reflected by the EU legislature in Directive 2004/38.89 This directive does provide in its Article 24(2) for a derogation on the principle of equal treatment for social assistance during the first three months of residence90 and for students even during the first five years as regards maintenance aid for studies.91 Apart from that the right of residence is conditional upon the citizen having sufficient resources (Article 7 of Directive   Currie, ‘The Transformation of Union citizenship’, in: Dougan and Currie (eds.), 50 Years of the European Treaties, Oxford: Hart Publishing, 2009, p. 374. In the same vein: Spaventa, supra note 74, p. 146. 86  Currie, supra note 85, p. 375–376. 87  O’Brien, supra note 42, p. 650–656. 88   Wollenschläger, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’, 17 European Law Journal (2011), p. 24 and 30–31. 89   See also Spaventa, supra note 74, p. 153. 90   However, the Court of Justice appears to give a rather narrow interpretation to the concept of ‘social assistance’. See the above discussed cases Vatsouras en Koupatanze, cited above, note 12. For critical comments see: Fahey, ‘Interpretive legitimacy and the distinction between ‘social assistance’ and ‘work-seeker’s allowance’: Comment on Vatsouras’, 34 EL Rev. (2009), p. 933–949. 91   As the ECJ confirmed in Förster, cited above, note 52. For a very critical assessment of this ruling see: Van der Mei, ‘Union Citizenship and the Legality of Durational Residence Requirements for Entitlement to Student Financial Aid’, 16 Maastricht Journal (2009), p. 477– 496. This commentator submits that the ECJ showed too much deference to the Community legislator by denying EU citizens the opportunity to demonstrate that they have integrated de facto in the host State’s society before the period of five years of legal residence. 85

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2004/38) even if its Article 14(1) guarantees the retention of the right of residence for Union citizens as long as they do not become an unreasonable burden on the social assistance system of the host Member State.92 The Court’s approach seems to be incremental in the sense that a certain degree of integration in the host Member State is a prerequisite in order for EU citizens to be treated equally with citizens of that State with regard to minimum social benefits. This approach differs from a ‘perfect assimilation’ approach which amounts to EU citizens being entitled to full equal treatment as soon as they settle in a host Member State. Furthermore, put into the context of what the EU legislature agreed on the special co-ordination system in Regulation 883/2004 applicable to the great number (more than 70) of minimum subsistence benefits listed in its Annex X, the ECJ’s position can even be considered as being moderate. As explained in more detail under point 3 of this contribution, the provisions of Regulation 883/2004 guarantee economically inactive persons falling under the scope of this regulation,93 entitlement to these benefits under the single condition of being resident in the Member State concerned. The EU legislature did not require any other ‘genuine link’. Moreover, the application of the rule of prohibition of any discrimination, including in the field of social minimum benefits of a non-contributory nature, has been confirmed by the case law of the European Court of Human Rights (ECtHR), more specifically in Gaygusuz94 and Stec.95 In these rulings the ECtHR confirmed that social security rights are property rights protected under Article 1 of Protocol No 1 to the ECHR and therefore fall under the general non-discrimination clause of Article 14 of the ECHR. According to the ECtHR, any condition for the entitlement to a non-contributory social minimum benefit must be checked against the prohibition of discrimination, including on grounds of nationality. In this, the ECtHR requires very weighty reasons to be put forward before it could consider a difference of treatment

  See also Wollenschläger, supra note 88, p. 18–19. However, for some it will be difficult to argue that a single person becomes a ‘burden’ on the finances of the host state even though its reasonability may be called into question: Closa Montero, ‘Martinez Sala and Baumbast: an institutionalist analysis’, in: Poiares Maduro and Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty, Oxford: Hart Publishing 2010, p. 400. 93   Including third-country nationals legally residing in a Member State. 94   Judgment of 16 September1996, Gaygusuz v. Austria, No. 17371/90. This case concerned discrimination on grounds of nationality for the entitlement to unemployment benefits. 95   Decision of 6 July 2005, Stec and others v UK, No. 65731/01 and 65900/01, para 46. 92

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based exclusively on the ground of nationality as compatible with the Convention.96 In addition, the right to property is also guaranteed by Article 17 of the Charter of Fundamental Rights of the EU. The ‘Explanation relating to the Charter’ as published in the Official Journal97 states that this article is based on Article 1 of Protocol No 1 to the ECHR. Its wording has been updated but, in accordance with Article 52(3), the meaning and scope of this right are the same as those of the right guaranteed by the ECHR, and the limitations may not exceed those provided for there. The Charter furthermore confirms in its Article 34(3) that ‘In order to combat social exclusion and poverty, the Union recognizes and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices.’

In its Article 9 the TFEU also confirms that in defining and implementing its policies and activities, the Union shall take into account requirements linked to the guarantee of adequate social protection and the fight against social exclusion. In the AG Cruz Villalon’s opinion this clause obliges the judiciary to take account of this newly formulated objective of the EU in the interpretation and implementation of the free movement rights, more specifically by explicitly putting these in a perspective of social policy objectives, the combat against poverty being one of them.98 Finally, despite the fact that the ECJ’s case law on European citizenship and entitlement to social minimum benefits was much criticized as a way of promoting social tourism and undermining the Member States’ capability of preserving their welfare systems, no such effect has been seen in reality. The level of mobility of persons within the Union is traditionally low, due to social, cultural and linguistic barriers. Furthermore, transferring residence is not really a ‘cheap’ solution for financial problems. Residing in a Member State with high social minimum benefits also means residing in a State with a high cost of living, hence making so-called ‘social tourism’ less attractive.99

  Gaygusuz, cited above, note 94, para 42. This means in fact a change of burden of proof: it is up to the state involved to prove that there is indeed an objective and reasonable justification for the different treatment of migrant persons. See in the same sense: Groenendijk, ‘Citizens and Third Country Nationals: Differential Treatment or Discrimination?’, in: Carlier and Guild (eds.) The Future of Free Movement of Persons in the EU, Brussels: Bruylant 2006, p. 81. 97   OJ C 303, 14 December 2007, 17. 98   Opinion of AG Cruz Villalon of 5 May 2010 in Case C-515/08, Santos Palhota, para 51–53. 99   See also O’Brien, supra note 42, p. 645. 96

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5.3.  Need for Further Clarifications in Order to Avoid a Mere Case-by-case and Individualistic Approach However, criticism could be formulated against the unclear character of the conditions used by the ECJ to decide who is and who is not entitled to noncontributory minimal benefits in the host State. In Trojani it seemed sufficient to ‘be lawfully resident in the host Member State for a certain time or to posses a residence permit’.100 In Grzelzcyk the criteria used were that ‘the beneficiaries of the right of residence must not become an unreasonable burden on the public finances’ and that ‘the financial difficulties of the student are temporary’.101 In D’Hoop and Collins the Court referred to the need to ‘establish that a genuine link exists between the person seeking work and the employment market of that State’.102 In Bidar it seemed to be decisive that students could ‘demonstrate a certain degree of integration into the society of the host State, which could be regarded as established after being resident for a certain length of time’.103 Even criteria such as ‘legal residence’ and ‘habitual residence’ are subject to interpretation and discussion.104 This could lead to case-by-case decisions on applications for basic social benefits and to a very individualistic approach of (national) solidarity.105 Indeed, as Spaventa argued, the proportionality test is carried out having due regard to the circumstances of the

  Trojani, cited above, note 48, para 43.   Grzelczyk, cited above, note 47, para 44. 102   D’Hoop, cited above, note 49, para 38 and Collins, cited above, note 50, para 67–69. 103   Bidar, cited above, note 51, para 57. Only in Förster (cited above, note 52) the ECJ seems to have departed from a case-by-case approach by referring to the precise limitation of the rights to maintenance support for students in Article 24(2) of Directive 2004/38. 104   See for instance Swaddling, cited above, note 39. See also on the unclear character of the conditions used by the ECJ: Besson and Utzinger, supra note 80, p. 573; Dougan and Spaventa, ‘ “Wish You Weren’t Here…”. New Models of Social Solidarity in the European Union’, in: Spaventa and Dougan, Social Welfare and EU Law, Oxford: Hart 2005, p. 204–205; O’Leary, ‘Solidarity and Citizenship Rights in the Charter of Fundamental Rights of the European Union’, in: De Burca, EU Law and the Welfare State. In Search of Solidarity, Oxford: University Press 2005, p. 73–75; Shaw, ‘A View of the Citizenship Classics: Martinez Sala and Subsequent Cases on Citizenship of the Union’, in: Poiares Maduro and Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty, Oxford: Hart Publishing 2010, p. 362; and Van der Mei, supra note 29, p. 563–566. 105   Dougan, ‘The Spatial Restructuring of National Welfare States within the European Union: The contribution of Union Citizenship and the Relevance of the Treaty of Lisbon’, in: Neergaard, Nielsen and Roseberry, Integrating Welfare Functions into EU Law. From Rome to Lisbon, Copenhagen: DJOF Publishing 2009, p. 168–175 and Somek, ‘Solidarity decomposed: being and time in European citizenship’, 32 EL Rev. (2007), p. 814–818. 100 101

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particular case so that it is rooted in the concrete facts of the cases.106 It would leave the public authorities of the Member States with too much room for discretion or could even lead to inconsistency in the uniform application of EU law by national courts.107 Legal uncertainty seems to be the consequence.108 Yet, such legal uncertainty would not be in line with what the ECJ required in Collins. In that judgment the Court ruled on the application of the UK habitual residence test that it must rest on clear criteria known in advance and that provision must be made for the possibility of means of redress of a judicial nature.109 We therefore repeat our plea in favour of introducing legislation, comparable to the system of rules of conflict in Regulation 883/2004, for social assistance and minimum subsistence benefits not covered by this regulation. It should lay down more precise criteria on the basis of which can be decided in which Member State and under which conditions a European citizen moving within the Union is entitled to these benefits. The special co-ordination system for non-contributory cash benefits of Regulation 883/2004 could certainly serve as an appropriate inspiration. As an alternative to a new legal instrument, one could even consider to extend the scope of this social coordination regime to all minimum subsistence benefits, including social assistance. Indeed, the distinction between the minimum subsistence benefits covered by Regulation 883/2004 and other such benefits not covered by it, is by most scholars regarded as artificial and no longer reflecting the reality of the solidarity systems of the Member States.110 In such a system residence would be the central prerequisite for participation in solidarity circles. Such an approach of course requires a precise definition of the conditions under which a person is considered to be residing in a State. The introduction in Article 11 of Regulation 987/2009 (implementing Regulation 883/2004) of criteria to determine a person’s residence clearly goes  in that direction. Its main objective is to prevent a person who is not  Spaventa, supra note 74, p. 149. On the constitutional dimension of this shift from an abstract proportionality assessment to a concrete assessment see: ibidem, p. 151–162 and also: Dougan, supra note 72. 107   Dougan and Spaventa, supra note 104, p. 204. O’Brien on the other hand points out that the procedural requirement as set by the ECJ’s case law should be able to prevent a purely litigant-led and individualized assessment: O’Brien, supra note 42, p. 661–662. 108   Brand, ‘Comments on Case C-209/03 Bidar’, 12 Columbia Journal of European Law (2005), p. 299; Dougan, supra note 65, p. 22–24 and 30–31; Golynker, supra note 61, p. 119; and Hailbronner, supra note 61, p. 1264. 109   Collins, cited above, note 50, para 72. See also Förster, cited above, note 52, para 56. 110   See Martinsen, supra note 20, p. 92; and Pieters, ‘Towards a Radical Simplification of the Social Security Co-ordination’, in: Schoukens (ed.), Prospects of Social Security Co-ordination, Leuven: ACCO 1997, p. 182–183. 106

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considered as a resident by any Member State from living in a legal no man’s land, as a result of which he would not be part of any solidarity system whatsoever. Such a residence-based co-ordination system could also supply provisions applicable to particular benefits under which persons migrating within the Union continue, for a certain period, to be subject to the solidarity system of the Member States of origin, before, after a certain period of residence in another Member State, the latter would take over the responsibility to cover this person. This could for instance be agreed for maintenance aid for studies. At present Directive 2004/38 only offers the possibility for the new host State to limit the payment of such aid to students who have acquired the right of permanent residence (which is acquired only after 5 years of residence in the host State). However, the directive does not provide for any obligation on the part of the Member State of origin to continue the payment of such aid during this period of five years. This could lead to a situation in which the student falls between two stools which obviously is an obstacle to his/her right to free movement. Therefore this provision in Directive 2004/38 constitutes an incomplete coordination of such schemes, contrary to what the EU co-ordination of social security schemes in Regulation 883/2004 does for the benefits falling under its scope. So it is not surprising that this kind of incomplete co-ordination has been leading to a number of cases before the ECJ with regard to the question as to whether students’ Member States of origin are allowed to stop paying maintenance grants when their students go to study in another Member State. Not surprisingly either is the fact that according to recent judgments by the ECJ, such as in Morgan and Bucher, this stop must be considered contrary to the right to move and reside freely in the Member States as guaranteed by Article 21 TFEU.111 Once again the ECJ had to decide on the merits of these cases without being able to rely on any guidance from the EU legislature. 6.  Concluding Remarks EU law formulates different answers to the question as to which Member State shall bear the cost of social benefits for economically inactive persons moving within the Union. For some benefits (like pensions) the Member State of previous employment will export the benefit, thus greatly limiting possible claims on the solidarity system of the new state of residence. As for other benefits, the new Member State of residence is financially responsible, in particular for those non-contributory benefits that are meant to guarantee a minimum level   Cases C-11/08 and C-12/08, Morgan and Bucher [2007] ECR I-9161.

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of subsistence. This is not only the case for the special non-contributory benefits covered by Regulations 883/2004 but, according to the ECJ’s case law on European citizenship, under certain conditions also for other social minimum benefits. Moreover, the ECJ recently confirmed that several categories of economically inactive persons, such as jobseekers or members of the family of (former) migrant workers, may rely on the EU status of ‘worker’ or ‘member of his/her family’ in order to claim equal treatment in the host State for social minimum benefits. Criticism that this case law is improperly interfering in the Member States’ competence to define entitlement to benefits of the national solidarity systems and that it shows judicial activism, does not seem to be well founded. Indeed, the ‘genuine link’ test used therein is seen as a method to strike a fair balance between rights of economically inactive migrants and the legitimate interest of  the Member States to protect their national welfare systems. Analysed against  the background of what the EU legislature recently agreed on noncontributory minimum benefits in Regulation 883/2004, we cannot but conclude that the ECJ is even more demanding than the EU legislature itself on the conditions for entitlement to social minimum benefits in the new Member State of residence. Furthermore, combating social exclusion has been identified both in the TFEU and in the EU Charter as an EU objective which should influence the interpretation and implementation of the free movement rights. Yet, there is a need to clarify the requirements put forward by the Court with regard to the entitlement of persons moving within the Union to social minimum benefits in the host Member States. The co-ordination system of Regulation 883/2004 could serve as a model for a possible legislative initiative. It should be clear from the above analysis that European migration law has been undeniably contributing to the definition of the boundaries of the social solidarity systems of the Member State. These boundaries have not only been designed by national political and legal choices, but also by the European Union as an area in which its citizens can move and reside freely. An area indeed in which solidarity no longer stops at the borders of national states or is limited to the citizens of each state separately. As Kostakopoulou so aptly articulated: ‘European citizenship constitutes a unique experiment for stretching social and political bonds beyond national boundaries and for creating a pluralistic and multilayered political community in which diverse people become associates in a collective experience’.112   Kostakopoulou, ‘European Union Citizenship: the Journey Goes on’, in: Ott and Vos (eds.), Fifty Years of European Integration, The Hague: Asser Press 2009, p. 273.

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The Privileged Treatment of Turkish Nationals Denis Martin* Introduction The Court of Justice’s case-law on the interpretation of the European Union law provisions concerning Turkish nationals (primarily Turkish workers) is quite rarely thoroughly analysed by the legal literature, save probably in Germany. That situation is understandable as more than 60% of all Turkish nationals in the European Union live in that Member State. That case-law should nevertheless not be overlooked in the other Member States. Already in his Opinion in one of the first cases dealing with Turkish workers, Advo­ cate  General Darmon wrote that ‘Turkish workers cannot be assimilated to Community nationals […] but Turkish workers are no longer in the situation of nationals of other non-member countries’.1 That statement clearly – and rightly – illustrates that Turkish nationals benefit from a privileged regime which other third country nationals normally do not enjoy. The most immediate consequence is that this privileged situation gave rise to jurisprudence specific to them. It is that last aspect which seems to be too often neglected by the legal literature, while a quick analysis of this case-law indeed raises at least two interesting questions: firstly, one can wonder in what way Turkish nationals benefit from a privileged treatment compared to other third country nationals? Secondly, the most recent Court’s judgments lead one to wonder whether Turkish workers do not also enjoy a privileged treatment even when compared to European Union workers? It is worth keeping in mind that the Court’s jurisprudence on Turkish workers (employed or self-employed) and their family members represent more than 40 judgments over the last 20 years. If compared to the Court’s case-law concerning other third country nationals, that figure represents more that twice as many judgments than those concerning third country nationals from all third states which have concluded a cooperation or a partnership a­ greement with the Community. Even if one compares that figure with the number of rulings given by the Court concerning the status of European Union citizens2 *  Views expressed are purely personal to the author. 1   Case C-237/91, Kus, [1993] ECR I-6783, para. 64–65. 2   Of which the first judgment was given in 1998.

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over the same period, the same conclusion can be drawn. The comparison is even more telling if one keeps in mind that the same figure also equates to a roughly equal number of judgments as those given, still within the same period, by the Court of Justice on the free movement of workers! Thus in purely quantitative terms at least, the case-law on Turkish workers is quite impressive. To conclude that Turkish nationals enjoy a privileged treatment, one has first to determine the exact nature of their treatment by the Court of Justice (I). The existence of a preferential treatment is also to be demonstrated by a comparison with the treatment of other third country nationals by the Court of Justice (II). Finally, the recent jurisprudence seems sometimes to completely blur the distinction between Turkish nationals and European Union citizens; that recent case-law must be analysed to verify whether the statement made by Advocate General Darmon in Kus, according to whom Turkish workers are in an ‘intermediate situation’, is still valid today or whether, in the Court’s own words, they should be granted ‘so far as possible’, rights enjoyed by EU workers. 1.  Nature of the Treatment of Turkish Nationals by the Court of Justice 1.1. Workers To fully understand the ambit of the Court’s jurisprudence, it is necessary to replace it in the normative context of the relations linking Turkey to the EU, and previously to the EEC. While the latter was born in 1957, Turkey was the second of the third countries, after Greece, to get the status of ‘associated country’, with the signature of the Ankara Agreement in 1963. Retrospectively, that Agreement looks extremely ambitious, as it provides that ‘the Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the European Economic Community for the purpose of progressively securing freedom of movement for workers between them’ (Article 12). Such ambitious formulae never appeared anymore in an Asso­ ciation Agreement. The latter was to further be completed, and reinforced, by an Additional Protocol in 1970. It goes even further than the Agreement as it provides that ‘freedom of movement for workers between Members States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of twelfth and the twenty-second year after the entry into force of that Agreement’, ie between 1976 and 1986 (Article 36). It also contains a provision according to which each Member State shall not discriminate against Turkish workers as regards work and remuneration (Article 37).

The Privileged Treatment of Turkish Nationals   77

Replacing a decision adopted by the Association Council in 1976, Decision 1/80 specifies even further the right to non-discrimination for the worker and his/her family members. In the same year, Decision 3/80 specified the rights enjoyed by Turkish nationals in the area of social security. It is in this normative context that the Court was invited, in 1987 in the Demirel case,3 to interpret the provisions governing the situation of Turkish workers. Mrs Demirel was the wife of a Turkish national who had been living and working in Germany since entering that country in 1979 for the purpose of rejoining his family. She had come to rejoin her husband holding a visa which was valid only for the purposes of a visit and was not issued for family reunification. She lodged an action for the annulment of an order to leave the country. The Court’s ruling is worth mentioning insofar as it rules that Articles 12 of the Ankara Agreement and 36 of the Additional Protocol ‘essentially serve to set out a programme’ and are not capable of producing direct effect. Turkish workers may thus not claim a right to free movement. However, that ruling should also be recalled because it is one of the very few in which the Court adopted a restrictive approach in the interpretation of the provisions governing the situation of Turkish nationals. In fact, the leitmotiv of its subsequent case-law will be that all those provisions are, so far as possible, to be interpreted in the light of the similar provisions applying to EU workers. In the very first issue of the European Journal of Migration and Law,4 I had the opportunity to comment upon two rulings given by the Court in November 1998, in the Akman5 and Birden6 cases. In both, the Court was asked to decide issues related to the right to a residence permit. In my comments, I noted that both were ‘luminous judgments’ to which nothing really was to be added. This was, to my mind, surely a consistent feature of the Court’s jurisprudence concerning Turkish nationals for several years. That characteristic is worth n ­ oting, as the case-law concerning EU citizens, and even that on the free movement of workers, was (or began to be) quite incoherent (and even chaotic). The Birden judgment also deserves to be mentioned as it illustrates another characteristic of that jurisprudence, i.e. the interpretation of provisions relating to Turkish workers/nationals by analogy with EU provisions governing free movement of EU workers. In that judgment, the Court ruled that the concept of ‘worker’ used in Article 6 of Decision 1/80 is identical to the same notion used in Article 48 EEC (now Article 45 TFEU). Similarly, it ruled in   Case 12/86, [1987] ECR 3719.   EJML, 1999, p. 150–153. 5   Case C-210/97, [1998] ECR I-7519. 6   Case C-1/97, [1998] ECR I-7747. 3 4

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the Tetik case7 that a Turkish worker who voluntarily terminated his contract of employment has rights almost identical to those of an EU job seeker. Finally, the Birden judgment is remarkable because it is the first one in which the Court gave an interpretation which can be applied to EU workers by analogy. One of the key issues in that case was whether Mr Birden could be regarded as a ‘worker’. Relying on a previous Court’s ruling,8 the German government claimed that Mr Birden was not a worker, as his activity had been supported by the public authorities within the framework of the Federal Law on Social Assistance. In its ruling, the Court distinguished both situations and its reasoning led it to restrict the scope of the Bettray judgment for Community workers too.9 The ‘interpretation by analogy’ of the concept of ‘worker’ can sometimes be very extensive. In the Payir case,10 the Court ruled that a Turkish national who entered the United Kingdom as a student, with permission to work, subject to a term-time limit of 20 hours per week, and who had worked part-time as a waiter in a restaurant is to be regarded as a ‘worker’. In the Nazli case,11 an issue was to determine whether a Turkish national, implicated in a drug trafficking and detained pending trial for 13 months, could claim he was still a ‘worker’ during his detention? In my comments upon that case in the Journal,12 I argued that ‘it is quite striking that the Court does not address the question of Mr Nazli’s status in Germany while detained pending trial on the basis of the facts. On the contrary, it builds its reasoning (para. 35) on the unconditional right to seek employment of Mr Nazli, which implies the right to give up a job in order to seek another which he may freely choose. This statement is worth noting not only because it has no direct connection with Mr Nazli’s situation, but also because it is quite broadly worded. […]. Such statements are indeed striking, because the Court never was so explicit about EC migrant workers’.

Ten years later, I still adhere to these comments. Initially developed as regards the concept of ‘worker’, the ‘by analogy approach’ used by the Court to interpret provisions granting rights to Turkish workers was later applied to the notion of ‘public policy’. For instance, it ruled in the Cetinkaya case13 that

  Case C-171/95, [1997] ECR I-319.   Case 344/87, Bettray, [1989] ECR 1621.  9   For an in-depth analysis of the case-law, see P. Mavridis, Les Turcs dans l’Union européenne – Réflexions su la prééminence du droit, Paris: Bruylant-Sakkoulas-Dalloz 2009. 10   Case C-294/06, [2008] ECR I-203. 11   Case C-340/97, [2000], ECR I-957. 12   EJML, 2000, p. 439. 13   Case C-467/02, [2004] ECR I-895, para. 43.  7  8

The Privileged Treatment of Turkish Nationals   79 ‘when determining the scope of the public policy exception provided for in Article 14(1) of Decision No 1/80, reference should be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State of the Community’.

This extension is noteworthy since the ‘application by analogy’ was not selfevident. In 1995,14 I argued that ‘it may be that an identical interpretation of the two provisions is not possible as it would place Turkish workers on an equal footing with Community workers. The rationale of the Court’s jurisprudence as regards the latter is based on the fact that free movement of workers constitutes a foundation of the Treaty […] while the rights which may be relied upon by the former have neither the same origin nor the same purpose’. In its rulings, the Court did not embark on such reasoning, but merely stated that its approach was all the more justified because both provisions are drafted in almost identical terms.

Although that statement is factually correct, it can be noted that the Court regularly departs from such approach in its interpretation of other international agreements concluded with other third countries, such as Switzerland (see infra). This ‘interpretation by analogy’ knows few limits. It can however be noted that in Bozkurt,15 the Court ruled that in the absence of any specific provision conferring on Turkish workers a right to remain in the territory of a Member State after working there, Article 6(2) of Decision No 1/80, which covers the situation only of Turkish workers who are working or who are temporarily incapacitated for work, cannot be construed as conferring on a Turkish national who has belonged to the legitimate labour force of a Member State the right to remain in the territory of that State following an accident at work rendering him permanently incapacitated for work. To justify this conclusion, the Court added that as far as Community workers are concerned, the conditions under which such a right to remain may be exercised were, under Article 48(3)(d) of the Treaty (now Article 45 TFEU), made subject to regulations to be drawn up by the Commission, with the result that the rules applicable under Article 48 cannot simply be transposed to Turkish workers. 1.2.  Family Members Provisions of Decision 1/80 are very protective of the rights of the family members of the worker. As soon as they fulfill some conditions linked to a fixed period of either legal residence or vocational training, they are granted   D. Martin and E. Guild, The Free Movement, para. 13.88.   Case C-434/93, [1995] ECR I-475.

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an unlimited right of access to the labor market. As to them, the Court applied the ‘interpretation by analogy’ even more extensively. In some instances, this method of interpretation seemed quite obvious, for example when it was used to define the concept of ‘family member’. In the Ayaz case,16 it ruled that a stepson who is under the age of 21 years or is a dependant of a Turkish worker duly registered as belonging to the labour force of a Mem­ ber State is a member of the family of that worker, for the purposes of Decision 1/80. It is interesting to note that the Court also based its reasoning on the fact that it had already ruled in a case concerning the interpretation of the Coop­ eration Agreement with Morocco that the same concept of ‘family members’ extends to relatives in the ascending line of the worker and of his spouse who live with him in the host Member State, so that, as mentioned by the Court, ‘that interpretation, given in respect of a cooperation agreement, must apply a fortiori with respect to an association agreement, which pursues a more ambitious objective’ (para. 47).

In others, the same approach was maybe a bit less obvious. In the Gürol case17, it ruled that the right to non-discrimination as regards access to education (Article 9 of Decision 1/80) guarantees Turkish children a non-discriminatory right of access to education grants, that right being theirs even when they pursue higher education studies in Turkey. 1.3.  Self-employed Workers and Service Providers There are far fewer Court rulings concerning self-employed workers. That paucity of judgments should not come as a surprise as the Association Council did not adopt specific provisions similar to Decisions 2/76, 1/80 or 3/80 applicable only to employed workers. Rulings given by the Court therefore usually focus on the standstill clause enshrined in Article 41 of the Additional Protocol. It provides, inter alia, that Member States shall refrain from introducing any new restrictions on the freedom of establishment and the freedom to provide services by Turkish nationals. This provision means, in particular, that Member States may not adopt more restrictive entry conditions than those applicable in 1973 when the Protocol entered into force. The Court ruled in Savas18 that Article 41 lays down, clearly, precisely and unconditionally, an unequivocal ‘standstill’ clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as   Case C-275/02, [2004] ECR I-8765.   Case C-374/03, [2005] ECR I-6199. 18   Case C-37/98, [2000] ECR I-2927. 16 17

The Privileged Treatment of Turkish Nationals   81

from the date of entry into force of the Additional Protocol, so that it produces a direct effect. Again, that conclusion is based on an interpretation by analogy with a Treaty provision, applicable to EU nationals, since the wording of both provisions is ‘almost identical’ (para. 48). The potential legal effect of that provision can be quite tremendous. Even if it does not grant Turkish nationals a concrete right of establishment or to provide services, a literal interpretation would mean that Member States are forbidden to submit the establishment of Turkish nationals on their territory to more restrictive conditions than those applicable more than thirty-five years ago, ie at a time where immigration rules were obviously more permissive than today. With such an interpretation, the margin of manoeuvre for Member States to regulate, today, the establishment of Turkish nationals would therefore be quite limited. In the Tum and Dari judgment,19 the Court gave an unequivocal reply to that issue. Mr Tum and Mr Dari arrived in the United Kingdom in 2001 and in 1998 respectively. As their applications for asylum were refused, their removal was ordered but that measure was not put into effect by the competent national authorities. They were granted only temporary admission to the United Kingdom, which does not amount to formal clearance for entry to the United Kingdom and was, moreover, subject to a restriction on taking employment. They applied for visas to enter the United Kingdom for the purposes of establishing themselves in business on their own account and to that end relied on the ‘standstill clause’ of Article 41 of the Additional Protocol. The Court confirmed that that provision is incapable of conferring a right of establishment to any of them, so that it does not therefore have the effect of conferring on them a right of entry into the United Kingdom, and added that that ‘standstill’ clause does not call into question the competence, as a matter of principle, of the Member States to conduct their national immigration policy. However, it ruled that the ‘standstill’ clause ‘is intended to create conditions conducive to the progressive establishment of freedom of establishment by way of an absolute prohibition on national authorities from creating any new obstacle to the exercise of that freedom by making more stringent the conditions which exist at a given time, so as not to render more difficult the gradual securing of that freedom between the Member States and the Republic of Turkey’ (para. 61).

On that basis, it concluded that it ‘must be regarded as also applicable to rules relating to the first admission of Turkish nationals into a Member State in whose territory they intend to exercise their freedom of establishment under the Association Agreement’ (para. 63).   Case C-16/05, [2007] ECR I-7415.

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This quite extensive interpretation of the notion of ‘standstill’ clause binds not only Member States, but also the EU legislator. Regulation 539/200120 requires that nationals of third countries listed in an Annex are in possession of a visa when crossing the external borders of the Member States. The Soysal case21 concerned the requirement for Turkish lorry drivers to obtain visas in order to provide services consisting in the international transport of goods by road. In 1973, they were entitled to enter Germany without a visa, but in 2009 a visa requirement was based notably on Regulation 539/2001. The Court ruled that this visa requirement constitutes a ‘new restriction’, within the meaning of Article 41(1) of the Additional Protocol, of the right of Turkish nationals resident in Turkey freely to provide services in Germany and added that that conclusion cannot be called into question by the fact that the national legislation merely implements a provision of secondary Community legislation (para. 58). The wording of that ruling is nevertheless somewhat ambiguous, as the Court also states that ‘it follows that such legislation, which did not exist on 1 January 1973, has at least the effect of making the exercise, by Turkish nationals such as the appellants in the main proceedings, of their economic freedoms guaranteed by the Association Agreement subject to conditions that are stricter than those that were applicable in the relevant Member State at the time of the entry into force of the Additional Protocol’ (para. 56).

The use of the words ‘making the exercise by Turkish nationals of their economic freedoms guaranteed by the Association Agreement’ could be questioned because it could be argued, on the basis of the wording of the Association Agreement, that Turkish nationals do not benefit from economic freedoms which would be guaranteed to them by the Association Agreement! Further, the ruling raises another interesting question. It concerns providers of services, but it is likely that it will one day be relied upon by recipients of services, who will claim that a visa requirement, not in force in 1973, constitutes a ‘new restriction’ to the ‘exercise of the economic freedom guaranteed to them by the Association Agreement’. It will then be interesting to check whether the Court is ready to extend to them the Soysal judgment.22

  Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ L 81 of 21.3.2001, p. 1–7. 21   Case C-228/06, [2009] ECR I-1031. 22   In their paper on Visa policy and Member States and the EU towards Turkish nationals after Soysal, Economic Development Foundation Publications, 2010, n° 232, K. Groenendijk and 20

The Privileged Treatment of Turkish Nationals   83

2.  A Privileged Treatment? Does the treatment guaranteed by the Court of Justice to Turkish nationals constitute a privileged treatment? Without any doubt, the answer is ‘yes’. When replaced in the context of international agreements concluded by the Com­ munity with third countries, one can easily conclude that, aside from nationals of EEA countries (Norway, Liechtenstein, Iceland) and perhaps Switzerland (see below), no other third country nationals enjoy such treatment. The extension of that favourable treatment of Turkish nationals or its interpretation by analogy was invoked, in the context of the cooperation agreement concluded by the EEC with Morocco, by a Moroccan worker in 1999 in the El Yassini case.23 It concerned the refusal to extend a residence permit, bringing to an end the employment of a Moroccan worker in a Member State. In its judgment, the Court stated that ‘it follows from that comparison between the EEC-Morocco Agreement and the EEC-Turkey Agreement that the first of those agreements, unlike the second, does not provide for any examination by the Contracting Parties, in due course, of the possibility for the third country concerned to accede to the Community’ (para. 57); ‘Furthermore, the EEC-Morocco Agreement, unlike the EEC-Turkey Agree­ ment, is not intended progressively to secure freedom of movement for workers’ (para. 58).

It then concluded that ‘so, it follows from the substantial differences between not only the wording but also the object and purpose of the rules governing the EEC-Turkey association and the EEC-Morocco Agreement that the Court’s case-law on the rules governing the EEC-Turkey association cannot be applied by analogy to the EECMorocco Agreement’ (para. 61).

As noted above, the EU legislator is also bound by the ‘standstill’ clause found in the Additional Protocol (for self-employed workers) or in Article 13 of Decision 1/80 (for employed workers). As a result, Turkish nationals may eventually benefit from a privileged treatment when compared to other third country nationals in the context of Regulation 539/2001 (see above) or of the E. Guild give a firm positive answer to that question on the ground that ‘the ECJ has stated more than once that the provision of the Agreement which states that its interpretation is to be guided by the similar rules in the TFEU must be given effect’ (p. 4 and 19). To my mind, the question is precisely whether the Court is ready to apply its case-law on Article 56 TFEU (on the right to provide services) also to Turkish recipients of services. 23   Case C-416/96, [1999] ECR I-1209.

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Dublin Convention determining the State responsible for examining applications for asylum lodged in one of the Member States. In the Tum and Dari case, the British government claimed that failed Turkish asylum seekers should not be allowed to rely on Article 41(1) of the Additional Protocol, since any other interpretation would be tantamount to endorsing fraud or abuse. The Court did not accept that argument and replied that the ‘standstill’ clause ‘of the Additional Protocol does not lay down any restriction as regards its scope, in particular in so far as concerns Turkish nationals to whom those authorities have refused the status of refugees, with the result that the refusal of the asylum applications of Mr Tum and Mr Dari is of no relevance for the purpose of deciding whether that provision is applicable in the cases in the main proceedings’ (para. 68).

Leaving the ‘standstill’ clause aside, it is also worth noting that a Turkish national can benefit from a more favourable treatment than that granted to refugees in accordance with the Geneva Convention. In the Altun case,24 the Court was invited to answer, in particular, the question whether the fact that a Turkish worker who obtained a right of residence in a Member State, and consequently, a right to access the labour market of that State, as a refugee and not on the basis of Decision 1/80, means that his family members may not invoke the rights usually granted to them by Decision 1/80? In its request for a preliminary ruling, the referring court took the view that refugees are already sufficiently protected by the rights conferred on them by the Geneva Convention and that it is unnecessary to bring them within the scope of an association agreement concluded with their State of origin; such a ‘double benefit’ would not appear appropriate. The Court rejects that argument and rules that ‘Article 5 of the Geneva Convention states that nothing in the convention is to be deemed to impair any rights and benefits granted to refugees apart from that convention’ (para. 45).

It adds that ‘Decision No 1/80 grants to the family members of a Turkish worker rights which they cannot invoke under the Geneva Convention’ (para. 46)

and that if ‘it is true that Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territory of Turkish   Case C-337/07, [2008] ECR I-10323.

24

The Privileged Treatment of Turkish Nationals   85 nationals and the conditions under which they may take up their first employment’ (para. 48), ‘however, the refusal to apply Decision No 1/80 on account of the status of political refugee enjoyed by Mr Ali Altun when his permission to enter and to stay in Germany was issued would impair the rights that he and the members of his family derive from that decision’ (para. 49).

It goes even further as regards the last question referred by the national court, by which it asked the Court whether and, if appropriate, in what circumstances the rights a family member of a Turkish worker derives from the first paragraph of Article 7 of Decision No 1/80 may be called into question where that worker obtained the status of political refugee on the basis of false statements. The Court replies negatively to that question: ‘Article 7 of Decision No 1/80 is to be interpreted as meaning that when a Turkish worker has obtained the status of political refugee on the basis of false statements, the rights that a member of his family derives from that provision cannot be called into question if the latter, on the date on which the residence permit issued to that worker is withdrawn, fulfils the conditions laid down therein’ (para. 64).

As stated above, the leading principle guiding the Court’s approach in the interpretation of the provisions of the Association Agreement, the Additional Protocol and Decision 1/80 is that of ‘interpretation by analogy’: where provisions of those texts are drafted in ‘almost identical words’ to provisions governing the free movement of EU workers, they should be interpreted in the same way. Although I have previously challenged that approach (see footnote (14) ), especially as regards protection against public policy measures, one has to admit that the approach taken is remarkably consistent in the Court’s jurisprudence. It can however be noted that the consistency of the ‘interpretation by analogy’ is almost unique to the Agreement with Turkey. In a recent case concerning the Agreement concluded with Switzerland,25 the Court was confronted with the question whether two Swiss nationals who regularly visit the Province of Vorarlberg (Austria) in order to hunt there may be subject to a hunting tax with a higher rate of tax being applied to them than which applies inter alia to nationals of the European Union. The provisions of the international agreement concluded by the Community with Switzerland include a prohibition to discriminate on grounds of nationality and to introduce ‘any new restriction on the right of entry and residence’. The Court first acknowledges that one of the objectives of the Agreement is to facilitate the provision of services in the territory of the contracting parties, for the benefit of nationals of the Member   Case C-70/09, Hengartner and Gesser, judgment of 15 July 2010, nyr.

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States of the Community and Switzerland, and to liberalise the provision of services of brief duration and that the Agreement grants persons who are to be regarded as recipients of services within the meaning of the Agreement a right of entry and residence in the territory of the contracting parties. Article 23 of Annex I to the Agreement contains specific provisions on residence permits for such persons. It is argued that in the case of Turkish nationals those elements would be regarded as sufficient to justify the application of the ‘interpretation by analogy’, but the Court chose to answer the question in a completely different way. It first states that ‘an international treaty must be interpreted not solely by reference to the terms in which it is worded but also in the light of its objectives’ (para. 36).

This premise is undeniably correct, but one is left to note that such statement has never been made by the Court as regards the Agreement with Turkey. In consequence, the statement, often used by the Court as regards the latter Agreement, that provisions with ‘an almost identical wording’ should be interpreted identically seems to be restricted to Turkey only. The Court then adds that ‘moreover, the Court has observed that the Swiss Confederation did not join the internal market of the Community, the aim of which is the removal of all obstacles to create an area of total freedom of movement analogous to that provided by a national market, which includes inter alia the freedom to provide services and the freedom of establishment’ (para. 41).

Again that statement is correct, but again too, it was never applied as regards Turkey. This quick comparison with a recent judgment concerning Switzerland supports the view I expressed, as far back as the 1990s, that the reason put forward by the Court to justify its interpretation by analogy are not always convincing, but, at the same time, clearly confirm that Turkish nationals do really enjoy a privileged treatment in the Court’s jurisprudence. 3.  A Too Privileged Treatment? The Hengartner judgment illustrates the idea that Turkish nationals are usually granted a privileged treatment when compared to other third country nationals. Judgments like Birden and Nazli exemplify the idea that sometimes the enhancement of the protection of EU migrant workers is ensured through the extensive interpretation of the protection enjoyed by Turkish workers. These two developments can thus lead the attentive reader of the Court’s caselaw to wonder whether the very privileged treatment of Turkish nationals is

The Privileged Treatment of Turkish Nationals   87

not a too privileged one or, more precisely, whether Turkish nationals are not privileged even when compared to EU nationals? It can be noted that the ‘interpretation by analogy’ enjoyed by Turkish workers led some nationals courts to bluntly ask the Court of Justice whether Turkish nationals can directly benefit from provisions of EU secondary legislation which, in principle, are applicable to the benefit of EU nationals only, such as guarantees against deportation offered to them by Directive 2004/38/ EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.26 Article 59 of the Additional Protocol provides that ‘the treatment granted to Turkey shall not be more favourable than that accorded by Member States among themselves by virtue of the Treaty establishing the Community’.

No equivalent to that provision appears in the cooperation agreements concluded by the EEC in the 1970s with Maghreb countries. This explains why the Court could rule in the Kziber case27 that a Moroccan worker’s family members can enjoy more social security rights than an EU worker’s family members. However, the recent case-law of the Court can lead one to wonder whether the limit of Article 59 is always complied with? In the Derin case,28 the Court was invited to determine whether it is compatible with Article 59 of the Additional Protocol for a Turkish national who, as a child, joined his parents who were employed as workers in Germany, and lived with them as a family, not to lose his right of residence derived from the right under the second indent of the first paragraph of Article 7 of Decision No 1/80 to free access to any paid employment – apart from in cases under Article 14 of Decision No 1/80 (public policy proviso) or where he leaves the host Member State without legitimate reason for a significant period of time – also where he has attained the age of 21 and no longer lives with or is maintained by his parents? In the same circumstances, it is legitimate to argue that if that child was an EU citizen, he would lose his right of residence, in any case as a family member of the EU citizen, holder of the right. Being himself an EU citizen, he could still avail himself of a right of residence in his own capacity, however, he would then have to fulfil personally conditions imposed by Directive 2004/38/EC to

  Case C-349/06, Polat [2007] ECR I-8167.   Case C-18/90, [1991] ECR I-199. Compare paragraph. 28 of the ruling with paragraph 18 of the Opinion of the Advocate General. That anomaly was subsequently corrected by the Court in the Cabanis case (C-308/93, [1996] ECR I-2097). 28   Case C-325/05, [2007] ECR I-6495. 26 27

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obtain that right. Conversely, if the EU worker’s child were a third country national, he would lose his right of residence as a family member, without being able to then claim, in his own capacity, a personal right of residence. The Court reaches the conclusion that, in those factual circumstances, Article 59 is complied with, but its reasoning is hardly convincing. It first rules that the Turkish national does not lose his right of residence in those circumstances. As regards compliance with Article 59 of the Additional Protocol, it does not try to explain that the Turkish national would be more favourably treated than the EU national, but that they are not in a comparable situation! It reminds the referring court of the rights enjoyed by the family members of an EU national, adding that such rights are not enjoyed by the family members of a Turkish national and then concludes that ‘accordingly, the situation of a child of a migrant Turkish worker cannot usefully be compared to that of a descendant of a national of a Member State, having regard to the significant differences between their respective legal situations. The more favourable situation enjoyed by Member State nationals results, moreover, from the very wording of the applicable legislation’ (para. 68).

That reasoning cannot convince, at least for two reasons. Firstly, as stated above, it compares the Turkish child of a Turkish worker with the EU child of an EU worker, but omits to take into consideration the situation of the nonEU child of an EU worker. Secondly, it is self-evident that, as a matter of principle, EU family members of an EU worker do enjoy more rights than those enjoyed by Turkish family members of a Turkish worker, but that more favourable situation derives from the simple fact that only the former enjoy the right to free movement. Thus, as a matter of principle, the two categories are not, in that respect, in a comparable situation. However, it is here argued that the conclusion which is then drawn by the Court distorts the true meaning of Article 59 of the Additional Protocol and leads to deprive it of any concrete effet utile. The Court adds a second argument to justify its conclusion, namely that another ‘interpretation would inevitably render the legal status of the children of migrant Turkish workers more precarious the further they integrated in the host Member State, whereas Article 7 of Decision No 1/80 pursues on the contrary the objective of a progressive consolidation of the situation of the family members of those workers in the Member State concerned, by permitting them, after a certain period of time, to live independently there’ (para. 71).

That statement is undisputable. However, it does not at all reply to the issue of compatibility with Article 59 of the Protocol. It is therefore argued that in Derin the Court ruled that, in identical factual circumstances, a Turkish

The Privileged Treatment of Turkish Nationals   89

family member is better treated if the worker is a Turkish national than if he is an EU national. The subsequent rulings have reinforced that line of reasoning. In the Bekleyen case29 the Court reiterates the reasoning employed in Derin. Ms Bekleyen, who was born in Berlin in 1975, lived with her family in Germany until she reached the age of 14. Her parents, Turkish nationals, had both been employed in Germany since 1971. In 1989, Ms Bekleyen returned with her entire family to Turkey, where she completed her secondary education as well as a course of study in landscape architecture. In 1999, she returned to Germany without her family for the purpose of continuing her higher education and completed her studies in 2005. She then applied for a residence permit pursuant to the second paragraph of Article 7 of Decision No 1/80, on the basis of the higher studies which she had completed in Germany. Invited by the referring Court to determine whether the issuance of a residence permit in those factual circumstances would comply with Article 59 of the Additional Protocol, the Court answered that ‘in that situation, the child of a worker who is a national of a Member State would have the right to settle in the host Member State, in order to pursue his or her studies there, on the basis of Article 18(1) EC, which confers on every citizen of the Union the right to move and reside freely within the territory of the Member States’ (para. 41).

As with Derin, one can legitimately wonder whether the Court chose the right comparator for the interpretation of Article 59 of the Additional Protocol. Again, if the EU worker’s child was of Turkish (or any other third state) nationality, the reasoning underpinning the Court’s conclusion would become invalid and one can argue that it is clearly doubtful whether Article 21 TFEU (former Article 18 EC) could be interpreted as requiring the host Member State to issue a residence permit to the third country national child of an EU worker in those factual circumstances. That interpretation of Article 59 of the Additional Protocol is nevertheless unambiguously endorsed by AG Sharpston in the currently pending Pehlivan case:30 ‘It is clear from the Court’s case-law that Article 59 of the Additional Protocol cannot be construed in that narrow way. Rather than looking to precise equivalence in terms of the rights granted to Turkish citizens and those granted to those of the Union, it is necessary to have regard to the overall picture. The rights of the   Case C-462/08, judgment of 21 January 2010, nyr.   Case C-484/07, para. 63.

29 30

90  Denis Martin former under Decision No 1/80 are in many ways more restricted than those available to the latter under European Union law generally’.

Respectfully, I think such interpretation distorts the literal and true meaning of that provision and rests on the choice of a comparator which is at least arguable. The judgment given by the Court in Genc31 illustrates another arguable facet of the ‘interpretation by analogy’ method used by the Court. In that case, the Court was asked to determine whether a Turkish national can claim to be regarded as a ‘worker’ even if the time spent in his professional activity amounts to only approximately 14% of the collectively agreed working time of a full-time worker, namely 5.5 hours? According to a consistent case-law as regards EU workers, which is applicable in the context of both free movement and sex discrimination, a person may claim the status of a ‘worker’ if he/she works at least 10 hours a week. In the Genc ruling, the Court states that ‘although the fact that a person works for only a very limited number of hours in the context of an employment relationship may be an indication that the activities performed are marginal and ancillary, the fact remains that, independently of the limited amount of the remuneration for and the number of hours of the activity in question, the possibility cannot be ruled out that, following an overall assessment of the employment relationship in question, that activity may be considered by the national authorities to be real and genuine, thereby allowing its holder to be granted the status of ‘worker’ within the meaning of Article 39 EC’ (para. 26).

This is clearly a very generous interpretation of the concept of ‘worker’ inserted in Article 45 TFEU (former Article 39 EC) which has no precedent for EU workers, except in the Vatsouras case32 to which the Court does not even refer in Genc.33 4. Conclusion The most remarkable trait of the Court of Justice’s jurisprudence over the last ten years concerning Turkish nationals is its consistency. That feature should not be underestimated. Over the same period, its case-law concerning EU citizens and/or EU workers has unfortunately become quite incoherent and   Case C-14/09, judgment of 4 February 2010, nyr.   Case C-22/08, [2009] ECR I-4585. 33   And which leads the reader to wonder whether the usual condition that the activity performed must not be ‘purely marginal or ancillary’ has still any role left to play in the definition of the concept. 31 32

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difficult to understand by non-specialists.34 The guiding principle of that juris­pru­dence is the ‘interpretation by analogy’. Initiated in the very first rulings given by the Court, that guiding principle has been consistently applied during the last ten years. For several years, it led the Court to give luminous judgments, very well articulated and reasoned. It is however argued here that more recently it is as if that luminosity had blinded the Court itself, since its judgments now raise the question whether they do not mean that, in identical factual circumstances, Turkish workers are better treated than EU workers, a result surely not intended by the drafters of the Association Agreement.

  This is a criticism I regularly made in my half-yearly comments of the case-law in the Journal.

34

Section 2 EU Borders and Irregular Migration

Has Europeanization Silenced Criticism on Intergovernmental External Border Cooperation? Helen Oosterom-Staples 1.  The Level Playing Field 2010 marks the 25th anniversary of the signing of the 1985 Schengen Agreement (SA); the beginning of cooperation between those Member States willing and able to abolish internal border controls, albeit outside the legal framework of the then European Community. Five years later, the 1990 Schengen Implementing Agreement (SIA) was signed and in 1995 controls at the shared (internal) borders of the initially five participating Member States were abolished. As time passed, Schengen cooperation gradually saw more Member States joining and by the time the Treaty of Amsterdam entered into force in 1999, all Member States minus two (the United Kingdom and Ireland) and two non-Member States (Iceland and Norway) were parties to the Schengen Agreements.1 The years following the entry into force of the Amsterdam Treaty, that had incorporated the Schengen Agreements into the EU-legal order,2 witnessed

 See on the free movement arrangements in these agreements: T. Hoogenboom, ‘Free Movement of non-EC Nationals, Schengen and Beyond’, in: H. Meijers et al. (eds), Schengen; Internationalisation of Central Chapters of the Law on Aliens, Refugees, Privacy, Security and the Police, Leiden: Stichting NJCM Boekerij 1991; K.P. Nanz, ‘Free Movement of Persons According to the Schengen Convention and in the Framework of the European Union’, in: A Pauly, De Schengen à Maastricht: voie royale et course d’obstacles, Maastricht: EIPA 1996) p. 61–77, D. O’Keeffe, ‘The Schengen Convention: A Suitable Model for European Integration?’, 11 Yearbook for European Law 1992, p. 185–220; J.D.M. Steenbergen, ‘Schengen and the Movement of Persons’, in: H. Meijers et al. (eds.) Schengen; Internationalisation of Central Chapters of the Law on Aliens, Refugees, Privacy, Security and the Police, Leiden: Stichting NJCM Boekerij 1991, p. 57–73; H.C. Taschner, Schengen; Die Übereinkommen zum Abbau der Personenkontrollen an den Binnengrenzen von EU-Staaten, Baden-Baden: Nomos Verlagsgesellschaft 1997. 2  Protocol Integrating the Schengen Acquis into the Framework of the European Union, OJ EC 1997, L 340. On the integration of the Schengen acquis into the EU legal order, see: D.M. Curtin, ‘The Schengen Protocol: Attractive Model or Poisoned Chalice?’, in: C.D. Ehlermann (ed.), Multi-Speed Europe - The Legal Framework of Variable Geometry in the European Union, Trier 1999, p. 73–81; ibid, ‘Integrating the “Schengen Acquis” into the Legal 1

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the slow adoption of legislative acts, replacing the old – intergovernmental – Schengen agreements and decisions of the Schengen Executive Committee, by new EU-legislative acts adopted in compliance with EU-institutional rules, trading in opaqueness for transparency,3 as the input of all actors in the legislative process is now available on the EU institutions’ websites and EurLex. Likewise, the EU’s legislative proceedings and general principles reign. Although, during the first five years, decision making in matters concerning external borders was subject to special procedures,4 amongst others a limited role for the European Parliament, by the time the so-called Schengen Borders Code (SBC)5 setting out the rules on short-stays was adopted decision making had shifted to co-decision (post-Lisbon the ordinary legislative procedure in Article 294 TFEU), giving the European Parliament a say in the matter.6 Admittedly, as far as the SBC is concerned the European Parliament’s input was limited as it was adopted in first reading7 with no serious comments being made by the European Parliament on its contents.8 The SBC operates

Order of the European Union, Opaque Legal Practice and Unidentified Objects’, in: T. Vandamme & J.H. Reestman, Ambiguity in the Rule of Law. The Interface between National and International Legal Systems, Amsterdam: Europa Law Publishing 2001, p. 26–34; P.J. Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis’, 37 CMLRev. 2000, p. 345–366; and S. Peers, ‘Caveat Emptor? Integrating the Schengen Acquis into the European Union Legal Order’, Cambridge Yearbook of European Legal Studies, Vol. 2, 1999, p. 87–123. 3  See on transparency and Schengen: D. Curtin & H. Meijers, ‘The Principle of Open Government in Schengen and the European Union: Democratic Retrogression?’, in: H Meijers et al., Democracy, Migrants and Police in the European Union: the 1996 IGC and Beyond, Utrecht: Standing Committee of Experts in International Immigration, Refugee and Criminal Law/Forum 1997, p. 13–44. 4   Article 67 EC. 5   Regulation (EC) No. 562/2006 of the European Parliament and of the Council of March 15, 2006 establishing a Community Code on the Rules governing the Movement of Persons across Borders (SBC), OJ EU 2006, L 105/1. On the SBC, see: S. Peers, ‘Key Legislative Developments on Migration in the European Union’, 8 EJML 2006–3/4, p. 32–356. 6   Article 1 Council Decision 2004/927/EC of 22 December 2004 Providing for Certain Areas Covered by Title IV of Part Three of the Treaty establishing the European Community to be Governed by the Procedure Laid Down in Article 251 of that Treaty, OJ EU 2004, L 396/45. 7  http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA -2007-0519. 8   Draft Report on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No. 562/2006 establishing a Community Code on the Rules governing the Movement of Persons across Borders (Schengen Borders Code), as regards the implementing Powers conferred on the Commission (COM(2006)0904 – C6-0015/2007 – 2006/0279(COD) ) Committee on Civil Liberties, Justice and Home Affairs, Rapporteur: Michael Cashman 12 June 2007, PE 390.553v02-00.

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alongside and in cooperation with a number of other legislative acts, i.e. the 2001 Regulation on nationals who need a short-stay visa,9 the 2009 Visa Code on short-stay visa,10 the Visa Information System (VIS) Regulation that, once operational, will store all and sundry data on short-stay visa applications,11 and Article 96 SIA, setting out the conditions for reports in the Schengen Information System (SIS) on third-country nationals (further: third country nationals) who are to be refused entry permission, which will one day be replaced by a Regulation of the Council and the European Parliament.12 Though progress is being made, it is still unclear when SIS alerts will be governed by this regulation.13 Intergovernmental Schengen cooperation was not free of criticism, varying from the lack of transparency and openness in decision making, the availability of effective remedies and judicial control in general to the broad discretionary powers States enjoyed when applying the Schengen rules, in particular the rules on alerts in the SIS.14 As time passed, practice confirmed that these

  Council Regulation (EC) No. 539/2001 of 15 March 2001 listing the Third-countries whose Nationals must be in Possession of Visas when crossing the External Borders and those whose Nationals are exempt from that Requirement, OJ EC 2001, L 81/1, most recently amended by: Council Regulation (EC) No. 1244/2009 of 30 November 2009, OJ EU 2009, L 336/1. In a second annex a list of countries whose nationals are not subjected to a visa obligation is found (Article 1(2) and Annex II). 10   Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (further: Visa Code), OJ EU, 2009, L 243/1. 11   Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the Exchange of Data between Member States on Short-stay Visas (VIS Regulation), OJ EU 2008, L 218/60. On the VIS, see: S. Peers, ‘Legislative Update: EC Immigration and Asylum Law, 2008, Visa Information System’, 11 EJML 2009–1, p. 69–94. 12  Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II), Brussels, 20 December 2006, 2005/0106 (COD), LEX 754, PE-CONS 3662/3/06, REV 3. On SIS-II, see: S Peers, Key Legislative Developments on Migration in the European Union: SIS-II, 10 EJML (2008–1) p. 77–104. 13   Report from the Commission to the European Parliament and the Council Progress Report on the Development of the Second Generation Schengen Information System (SIS II), January 2010-June 2010, 5 November 2010, COM(2010) 633 fin., p. 11 14   E. Brouwer, Digital Borders and Real Rights; Effective Remedies for Third-country Nationals in the Schengen Information System, Ph.D. Radboud University Nijmegen 2006, Chapter 10; D. Curtin & H. Meijers, ‘The Principle of Open Government in Schengen and the European Union: Democratic Retrogression?’, in: H Meijers et al., Democracy, Migrants and Police in the European Union: the 1996 IGC and Beyond, Utrecht: Standing Committee of Experts in International Immigration, Refugee and Criminal Law/Forum 1997, p. 13–44; Justice, The Schengen Information System; A Human Rights Audit, Justice 2000; and A. Woltjer, ‘Schengen: The Way of No Return’, 2 MJ 1995–3, p. 256–266.     9

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concerns were not just theoretical, as individuals trying to access Schengen territory were stopped in action.15 On a general note, it has been observed that the EU external border, which is defined in terms of its geographical location in Article 2(1) SIA and Article 2(2) SBC, is ‘no longer a physical place but a legal one … that is designed and determined by the characteristics of the individual seeking to cross it in law’.16 This assertion reflects the effects of the rules on short-stay visa and carriers’ sanctions on the individual who has to assure officials and private parties that the entry conditions set out in the SBC are satisfied long before the EU external border is in sight.17 It is this process of shifting external borders by erecting de jure borders to protect the de facto external border that has affected individual rights, in particular access to justice.18 The purpose of this contribution is to establish to what extent the criticism  voiced on intergovernmental Schengen cooperation still holds true (section 5). Are individuals benefitting from the rights they enjoy under the EU-rules on external borders? Are they still experiencing the same problems or have old problems been replaced by new ones? This contribution is structured along the lines of Article 5(1) SBC that sets out the conditions for short-stays. The purpose of the analysis of entry conditions in section 3 is to establish how the new rules are being applied, taking the case of the Netherlands as an example as was the case in my contribution   V. Guiraudon, ‘Before the EU Border: Remote Control of the “Huddled Masses” ’, in: E. Guild & P. Minderhoud (eds.), In Search of Europe’s Borders, The Hague: Kluwer Law International 2003, p. 191–214; A. Hurwitz, ‘The “Schengen” Practice and Case-Law in Belgium’, 2 EJML 2000–1, p. 37–48; H. Staples, ‘Adjudicating the Schengen Agreements in the Netherlands’, 2 EJML 2000–1, p. 49–83; idem., ‘Adjudicating the External Schengen Border’, in: E. Guild & P. Minderhoud (eds.), In Search of Europe’s Borders, The Hague: Kluwer Law International 2003, p. 215–250. 16   E. Guild, Moving the Borders of Europe, Inaugural lecture, Publicaties van de Faculteit der Rechtsgeleerdheid nr. 14, Nijmegen: Katholieke Universiteit Nijmegen 2001, p. 68. See also: H. Oosterom-Staples, ‘Effective Rights for Third-Country Nationals’, in: H. Lindahl, A Right to Inclusion and Exclusion? Normative Fault Lines of the EU’s Area of Freedom, Security and Justice, Oxford: Hart Publishing 2009, p. 82–90. 17   V. Guiraudon, ‘Before the EU Border: Remote Control of the “Huddled Masses” ’, in: E Guild & P. Minderhoud (eds.), In Search of Europe’s Borders, The Hague: Kluwer Law International 2003, p. 191–214; S. Scholten & P. Minderhoud, ‘Regulating Immigration Control Carrier Sanctions in the Netherlands’, 10 EJML 2008, p. 123–147; and H. Staples, ‘Adjudicating the External Schengen Border’, in: E Guild & P. Minderhoud (eds.), In Search of Europe’s Borders, The Hague: Kluwer Law International 2003, p. 215–250. 18   H. Oosterom-Staples, ‘Effective Rights for Third-Country Nationals’, in: H. Lindahl, A Right to Inclusion and Exclusion? Normative Fault Lines of the EU’s Area of Freedom, Security and Justice, (Hart Publishing, Oxford, 2009) p. 82–90. 15

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to the EJML, Adjudicating the Schengen Agreements in the Netherlands. Following the discussion on entry conditions in section 3, a number of related issues, which are important to answer the aforementioned questions, but are hard to capture in one of the entry conditions, will be considered in section 4. But first, let us consider the notion that is key to this contribution, ‘short-stays’ (section 2). 2.  Defining Short Stays Short-stays are not defined in Article 2 SBC, but from Article 5(1) it follows that ‘short’ means stays not exceeding ‘three-per-six-months’.19 In 2006, the ECJ shed light on the correct reading of ‘three-per six-months’. Though the ruling concerns Article 20 SIA – third country nationals who do not need a short-stay visa – there is no reason to assume that the Court’s reading of ‘three-per-six-months’ in that provision cannot be applied by analogy to Article 5(1) SBC, as the purpose of both provisions is to establish the conditions for short-stays. The question put to the ECJ concerned the phrase ‘date of first entry’, as the point of reference to calculate the period of ‘three-per-six-months’. Bot, a Romanian who, prior to Romania’s accession to the EU, had visited France on various occasions in the period 15 August 2002–25 March 2003 which, taken together, exceeded the ‘three-per-six-months’ requirement. Reading Article 20 SIA in conjunction with Article 23(1) SIA, the ECJ established that shortstays may either be continuous or successive visits which ‘taken together, do not exceed three months in all’. It also established that under the Schengen Agreements third country nationals are obliged to leave the Schengen Area immediately when stays total three months, even if the six-month period has not lapsed. Return to EU-territory is permitted on expiry of the six-month period (taking the date of first entry as the reference point) and on condition that the third country national has actually left EU-territory. The new sixmonth period starts on the date of return which must be after completion of the preceding six-month period.20 So, according to the ECJ’s reading a third country national may stay in the territory of the EU for a maximum of three months, every six months, departure being obligatory when the three months are completed even if this is before the expiry of the six-month period. What the ECJ did not establish,

  ECJ case C-241/05, Bot [2006] ECR I-9627, cons. 26.   Ibid., cons. 28–29.

19 20

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is what amounts to a month. Where stays are continuous, following the calendar appears logical, but what when stays are successive, how many days can a third country national stay before becoming an overstayer? Depending on the number of days in a month, three months ranges between 92 (June, July and Augustus) and 89 (February, March and April) days. As Article 10(1) SBC obliges Member States to systematically stamp a third country national’s travel documents, both on arrival and exit, entry and exit stamps should be available as evidence of the date of first entry and the duration of stay(s). Having said this, it cannot go unmentioned that Article 8(1) SBC allows for a relaxation of border checks in ‘unforeseen and exceptional circumstances as a result of which waiting times become excessive’. This sits uneasily with the presumption that the absence of an entry stamp equates to a breach of the ‘three-per-six-months’ requirement, justifying the adoption of an expulsion measure.21 Rebuttal of the aforementioned presumption is, however, possible by presenting ‘credible evidence, such as transport tickets or proof of … presence outside the territory of the Member States’.22 This reflects the ECJ’s case law on evidence that can be submitted by nationals of the Member States to establish their rights under the free movement provisions in the TFEU.23 Where no evidence is submitted, Article 11 SBC allows Member States to expel a third country national for not satisfying short-stay conditions. In its 2009 ruling in the joined cases Garcia and Cabrera, the ECJ read this provision as a choice for Member States that are not obliged to expel a third country national if this is not provided for in their national law.24 In the case at hand, penalties for overstaying were all the authorities had at hand. The issue of penalties was also addressed by the ECJ in the Bot case where it established that breaches of the ‘three-per-six-month’ condition can be penalised by Member States albeit in compliance with European law, without further explanation what this entails.25 Taking that Court’s case law on an EU citizen’s right to free movement of persons as a guideline, it can be argued that this entitles ‘the national authorities.. to make the failure to comply with such provisions subject to penalties comparable to those attaching to minor offences committed by their own nationals, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes   Article 11(1) & (3) SBC.   Article 11 (2) SBC. 23   ECJ cases C-363/89, Roux [1991] ECR I-273, cons. 15 and 16 & C-215/03, Salah Oulane [2005] ECR I-1215, cons. 53. 24   ECJ joined cases C-261/08 & C-348/08, Garcia and Cabrera [2009] ECR I-10143, cons. 66. 25   ECJ case C-241/05, Bot [2006] ECR I-9627, cons. 31. 21 22

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an obstacle to the free movement of workers’.26 Examples of disproportionate sanctions in the ECJ’s case law on free movement of persons are: imprisonment and expulsion.27 A lesson to take with us from this section is that Europeanization of external borders means that the ECJ will use principles and practices developed in other areas of European law to resolve issues arising in cases con­ cerning external borders. 3.  Entry Conditions The conditions for stays not exceeding ‘three-per-six-months’ are listed in Article 5(1) SBC. Though not entirely identical to its predecessor, Article 5(1) SIA, the similarities are striking. Likewise, the logic underlying external borders controls has remained unchanged; permission to enter the European Union is withheld where entry conditions are not satisfied.28 The SBC is designed to reduce illegal immigration and trafficking in human beings and prevent internal security, public policy, public health and international relations risks.29 In executing external border controls, Member States are serving the interests of all Member States that have abolished internal border controls and are committed to exercise these controls in a professional and respectful way, ensuring full respect for human dignity and compliance with the principle of proportionality.30 To avoid conflicts between legal regimes, consideration 5 explicitly requires Member States to pay due respect to the rights enjoyed under Directive 2004/38/EC.31 This is of particular interest to EU-citizens’ third country national family members who by virtue of their nationality fall under the SBC, but have become beneficiaries of Directive 2004/38/EC by virtue of their relationship with an EU-citizen (see further: sub-section 4.3). The list in Article 5(1) SBC suggests that there are five entry conditions which have to be met. However in section c, we find two entry conditions   ECJ case C-265/88, Messner [1989] ECR 4209, cons. 14.   ECJ cases 118/75, Watson & Belmann [1976] ECR 1185, cons. 20, 157/79, Pieck [1980] ECR 2171, cons. 19, C-265/88, Messner [1989] ECR 4209, cons. 14 & C-329/97, Ergat [1999] ECR I-1487, cons. 57. 28   Article 13(1) SBC. See sub-section 4.1. 29   Consideration 6 SBC. 30   Considerations 6–7 SBC. 31   Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States, OJ EU 2004, L 229/35. 26 27

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‘purpose and conditions of stay’ and ‘means of subsistence’ which will be considered in respectively sub-sections 3.3 and 3.4. Two further conditions, which will require consultation of other legislative documents to establish their true meaning are found in sections b (valid short-stay visa) and d (SIS-alerts) which are discussed in respectively sub-sections 3.2 and 3.5. The other entry conditions are the possession of a valid travel document or documents authorising the crossing of the border (section a) and ‘the third-country national may not pose a threat to public policy, international security, public health or the international relations of any of the Member States, in particular where no alert has been issued in a Member States’ national data bases for the purpose of refusing entry on the same ground’ (section e). Further details on these conditions are found in respectively sub-sections 3.1 and 3.6. Though strictly speaking not an entry condition, the Dutch Council of State has read into Article 21(1)(d) SBC32 an obligation that amounts to an entry condition which, if not satisfied, transforms the initially legal nature of stay into irregular and justifies a detention measure.33 This provision, that contains a reference to Article 22 SIA, allows national authorities to record the beginning of the ‘three-per-six-months period’, for which purpose third country nationals can be requested to report their presence to the national authorities in accordance with national law. The Netherlands is not the only Member State which has endorsed this practice; the Commission has announced an amendment to Article 22 SIA that, in due time, will bar Member States from requiring third country nationals to report their presence upon entering their territory, failure of which renders their stay irregular and can justify a detention measure.34 3.1.  Valid Travel Document The first entry condition listed in Article 5(1) SBC is the ‘possession of a valid travel document or documents authorising [a third country national] to cross the border.’ Which documents are considered as ‘valid’ is detailed in two decisions of the Schengen Executive Committee35 that are not listed in Article 39   This provision obliges third country nationals legally present in the Schengen area to report their presence to the national authorities in accordance with national law. 33   ABRvS, 26 May 2010, 200908732/1/V3, LJN: BM6096, cons. 2.5.1–2.5.2. 34   Report from the Commission to the European Parliament and the Council on the Application of Title III (Internal Borders) of Regulation (EC) No. 562/2006 Establishing a Community Code on the Rules governing the Movement of Persons Across Borders (Schengen Borders Code), 13 October 2010, COM(2010) 554 final, p. 6. 35   SCH/Com-ex(98)56 and SCH/Com-ex (99)14 of 28 April 1999. 32

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SBC as being replaced by the SBC.36 Whereas Article 12 of the Visa Code requires the travel document to be valid for at least three months after the intended date of departure, there is no such requirement in the SBC. Whether this was overlooked at the time the latter was adopted or knowingly omitted, is not clear. Fact is that strictly speaking the duration of validity of a travel document should not be invoked as a reason to withhold entry permission. The Dutch courts have been requested to reconsider a decision to withhold entry permission for non-compliance with this condition in various cases, albeit all different in nature. A refusal to grant entry permission on presentation of an allegedly false travel document was considered unlawful by the Haarlem District Court where a decision of the Dutch Criminal Court acquitting the third country national concerned from the charge of possession of a false travel document  (Article 231 Criminal Code) predated the decision to withhold entry permission.37 In a case concerning the transferral of an asylum seeker under the Dublin rules travelling to the Netherlands from Switzerland, the District Court Amsterdam found that as a laissez-passer issued on the basis of Articles 19–20 of Regulation (EC) No. 1560/2003 includes the specification that it in no way can be treated as a travel document, a refusal to grant entry permission to the bearer of such document was justified, as a Member State can process an application for asylum without legally granting entry permission to the third country national in question.38 Likewise, where the identity card presented to the Dutch authorities specified that it was not valid outside the Member State that issued it, the obligation to possess a valid travel document was not considered satisfied and a detention measure justified, in particular as there was no evidence of a fixed address in the Netherlands.39 Concurring with Boeles, the ECJ’s reading of a passport or an identity card, namely ‘documents which are intended to enable their holder to provide proof of his identity and nationality’40 in the MRAX case could have been applied here which would have transformed the identity card

  Proposal for a Council Regulation establishing a Community Code on the Rules governing the Movement of Persons Across Borders, 26 May 2004, COM(2004) 391 final, p. 17. 37  Rechtbank ’s-Gravenhage, zp. Haarlem, 26 October 2009, Awb 09/25035, LJN: BK5786, cons. 2.12–2.13. 38   Rechtbank ’s-Gravenhage, zp. Amsterdam, 13 February 2009, Awb 09/3458, LJN: BH5426, cons. 11.1–12. 39  ABRvS, 29 December 2008, 200808712/1, LJN: BG9512, JV 2009/97, with commentary P. Boeles, cons. 2.1 & 2.4. 40   ECJ case C-459/99 [2002] ECR I-6591, cons. 58. 36

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into an adequate document for short-stays, resulting in permission for a shortstay in the Netherlands.41 3.2.  Short-stay Visa The second condition listed in Article 5(1)(b) SBC is the possession of a valid short-stay visa, if required by Annex I to Council Regulation (EC) No. 539/2001; the so-called Black list42 that is updated on a regular basis. This Regulation allows Member States to exempt third country nationals from the short-stay visa obligation, where this has been communicated to the European Commission in advance.43 A national from a State on the Black list, will have to present a valid shortstay visa when crossing Europe’s external border. Where third country nationals have two nationalities and only one is listed on the Black list, it must be assumed that no short-stay visa is required. A practical argument being that where they choose not to reveal their ‘Black list’ nationality, presenting their passport issued by a non-Black list State, Member States have no means to establish that there is also a Black list nationality at stake. A legal argument can be derived from the Micheletti case, where the ECJ ruled that when a national of a Member State also holds the nationality of a third State the former takes preference, thus allowing the individual to benefit from the most liberal migration rules.44 Applying this reading by analogy to third country nationals with multiple nationalities, the nationality giving access to the most lenient rules must take preference. The processing of applications for short-stay visa is subject of the Visa Code that details the competent authority (sub-section 3.2.1), the application procedure (sub-section 3.2.3) and the conditions for issuing short-stay visa (sub-section 3.2.2). 3.2.1.  Establishing the Competent Visa Authority Short-stay visa applications are to be lodged with the consulate of a Member State located in the applicant’s country of legal abode.45 The destination in combination with the type of visa – uniform, transit or airport transit – determines which Member State’s consulate is actually competent to process the

  JV 2009/97, point 4.   Article 1(2) Council Regulation 539/2001. 43   Article 5 Regulation (EC) No. 539/2001. 44   ECJ case c-369/90 [1992] ECR I-4239, cons. 14. 45   Article 4–5 Visa Code. 41 42

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application.46 To ensure that all applications are examined and decided on, the Member States are obliged to cooperate.47 This obligation finds its expression in an admissibility check, ascertaining if the consular authorities where the visa application is lodged are actually competent to process the application.48 If the outcome is a lack of competence, the application form and any supporting documentation are returned to the applicant, who is informed of the competent authorities, and the visa fee is reimbursed.49 Rather than sending a visa applicant on a wild goose chase, the short-stay visa authority that receives the inadmissible application is obliged to direct the applicant to the competent visa authority. This is certainly a positive development that reflects the commitment to fully respect human dignity in consideration 7 of the SBC. 3.2.2.  Short-stay Visa The substantive conditions for the issuing of short-stay visa build on the entry conditions in the SBC – valid travel document50 and sufficient means of subsistence, including return and accommodation,51 – but there are additional conditions to be satisfied by short-stay visa applicants – i.e. submission of biometric identifiers, namely a photograph and fingerprints52 and adequate medical travel insurance.53 A standard application form is included as Annex I to the Visa Code.54 At the time the Visa Code was adopted the short-stay visa fee was € 60 for adults and € 35 for children.55 A short-stay visa that is issued does not confer an automatic right of entry to the EU-territory; this is determined at the time the third country national presents him/herself at the external EU-border along the lines of Articles 5(1) and 13 SBC.56 As the conditions in Article 5(1) SBC were applied to applications for shortstay visa before the Visa Code entered into force,57 Dutch case law not only   Articles 6–7 Visa Code.   Article 5(4) Visa Code. See on representation: Articles 8 and 41 and consideration 4 Visa Code. 48   Article 18 Visa Code. 49   Article 18(2) Visa Code. 50   Articles 10(3)(b) and 12 Visa Code. 51   Articles 10(3)(f), 14 and Annex II Visa Code. 52   Articles 10(3)(c)-(d) and 13 Visa Code. 53   Articles 10(3)(g) and 15 Visa Code. 54   Articles 10(3)(a) and 11 Visa Code. 55   Articles 10(3)(e) and 16 Visa Code. The latter also provides for the waiver and reduction of the visa fee. 56   Article 30 Visa Code. 57   E.g. Rechtbank ’s-Gravenhage, zp Arnhen, 8 October 2009, Awb 08/45367, LJN: BK7095. 46 47

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provides a good indication how matters will materialise under the Visa Code, but also how the Dutch courts read the entry conditions in Article 5(1) SBC. This case law is covered in the next sub-section where the grounds to refuse a short-stay visa in Article 32(1) of the Visa Code are considered. 3.2.3.  Processing Visa Applications The visa procedure consists of an admissibility check which is followed by the examination of the application. The admissibility check serves to verify whether the short-stay visa application was made within the prescribed three month period,58 the standard application form was used, biometric identifiers have been included59 and the fee has been paid.60 If any one of these requirements is not met, the application is inadmissible and the application form and any supporting documents are returned, biometric data are destroyed, the visa fee reimbursed and the application is not examined.61 If the application is admissible, this is recorded in the VIS and, along the lines of Article 21 Visa Code, the application is examined and the VIS consulted.62 This examination has to be completed within 15 calendar days, starting from the date of application,63 and a decision either to issue or refuse a visa has to be taken.64 Either way, the decision is recorded in the VIS.65 Key issues in the examination are the authenticity and reliability of documents submitted and the veracity and reliability of the applicant’s statements.66 The examination procedure is subject of Article 21, the first section of which reads: ‘In the examination of an application for a uniform visa, it shall be ascertained whether the applicant fulfils the entry conditions set out in Article 5(1)(a), (c), (d) and (e) of the SBC, and particular consideration shall be given to assessing whether the applicant presents a risk of illegal immigration or a risk to the security of the Member States and whether the applicant intends to leave the territory of the Member States before the expiry of the visa applied for.’

  Articles 19(1) first indent and 9(1) Visa Code.   Articles 19(1) 2nd and 3rd indent and 10(3)(a)-(d) Visa Code. 60   Articles 19(1) last indent Visa Code. 61   Article 19(3) Visa Code. 62   Article 19(2) Visa Code. 63   Article 23(1) Visa Code. See for extension of this period: Article 23(2)-(3) Visa Code. 64   Article 23(4) Visa Code. See: Articles 24–29 (issuing) and Article 32 (refusal) Visa Code. The examination may also be discontinued and transferred to the relevant authorities (Article 23(4)(d) Visa Code. 65   Articles 24(3), 25(5) and 26(6) (issuing) and Article 32(5) (refusal) Visa Code. 66   Article 21(7) Visa Code. 58 59

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At this stage, the authorities also verify whether the applicant has already exceeded the maximum duration for short-stays.67 A short-stay visa once issued may be modified, annulled or revoked. In each case, the decision is reported in the VIS and can be appealed.68 A shortstay visa is issued with a 15 days ‘period of grace’69 and authorizes one, two or multiple entry/ies within a maximum period of five years.70 A refusal to issue a visa must be notified to the applicant by means of a standard form71 and can be appealed in accordance with the national law of the Member State whose authorities have rejected the application.72 The following grounds to refuse a short-stay visa application are found in Article 32(1) of the Visa Code: – presentation of false, counterfeit or forged travel documents, – no justification for the purpose and conditions of the intended stay, – no evidence of sufficient means of subsistence, – the maximum period of three months for short-stays has already been completed in the current six-month period, – an alert in the SIS for the purpose of refusing entry permission, – the existence of a threat to public policy, internal security or public health, as determined by Article 2(10) SBC or to the international relations of the Member States, – no proof of adequate and valid travel medical insurance, or – reasonable doubt as to the authenticity of the supporting documents or the veracity of their contents, the reliability of applicant’s statement or intention to leave the EU-territory prior to the expiry of the visa. Adjudicating short-stay visa cases, the Dutch courts have taken it upon them to check discretionary powers. Thus means of subsistence in Article 5(1)(c) SBC does not justify an obligation to show that they are long-lasting (duurzaamheidsvereiste)73 and when assessing the risk of overstaying, reliance on one single criteria to substantiate that return on expiry of the ‘three-out-ofsix-months’ period is not guaranteed, does not satisfy74 and ‘no social and

  Article 21(4) Visa Code.   Articles 33 (modification) and 34 (annulment and revocation) Visa Code. 69   Article 24(1) 4th paragraph Visa Code. 70   Article 24(1) 2nd paragraph Visa Code. 71   Article 32(2) Visa Code 72   Article 32(3) Visa Code. 73   E.g. Rechtbank ’s-Gravenhage, zp Haarlem, 28 July 2010, Awb 10/22814, LJN: BN3450. 74   E.g. Rechtbank ’s-Gravenhage, zp Arnhem, 8 October 2009, Awb 08/45367, LJN: BK7095, cons. 8. 67 68

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economical ties’ is not accepted as a strong contra-indication of the reliability of the apllicant’s statement that return is guaranteed and, moreover, requires an individual assessment of the situation.75 The applicant’s intention to leave the Netherlands on expiry of the shortstay visa76 and the lack of financial means available to the applicant77 are the most used grounds to refuse a short-stay visa. The other grounds that have given rise to case law are a report in the SIS albeit it in relation to Directive 2004/38/EC,78 contradictory information on the purpose of the intended stay,79 false information,80 public policy within the meaning of Article 5(1)(e) SBC81 and the claim that by applying for a short-stay visa the procedure for long-stay visa (mvv) was being circumvented.82 An interesting case was handed down by a Criminal court rulinged that where it is established postentry that the third country national may not intend to leave the territory upon expiry of the time allotted for short-stays, i.e. because he/she has taken

  Ibid., cons. 11–12.   E.g. Rechtbank ’s-Gravenhage, zp. Arnhem, 12 January 2010, Awb 09/25275, JV 2010/84, Rechtbank ’s-Gravenhage, zp Haarlem, 12 October 2009, Awb 09/1857, LJN: BK4576, Rechtbank ’s-Gravenhage, zp Arnhem, 8 October 2009, Awb 08/45367, LJN: BK7095, President Rechtbank ’s-Gravenhage, zp Amsterdam, 28 May 2009, Awb 08/34330, LJN: BI8787, MR 2009/50, Vz. Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, 12 May 2009, Awb 08/35974, LJN: BJ4147, Vz. Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, 12 May 2009, Awb 08/35971, LJN: BJ4027, Rechtbank ’s-Gravenhage, zp Assen, 23 September 2008, Awb 08/31723, LJN: BF8087, JV 2008/469, Rechtbank ’s-Gravenhage, zp Amsterdam, 14 December 2007, Awb 07/06621, LJN: BC0759 and Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, 29 October 2007, Awb 07/11022, LJN: BC0778. 77   E.g. Rechtbank ’s-Gravenhage, zp Haarlem, 28 July 2010, Awb 10/22814, LJN: BN3450, JV 2010/394, Rechtbank ’s-Gravenhage, zp Amsterdam, 27 May 2010, Awb 09/29393, LJN: BM7247, Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, 28 May 2009, Awb 08/36292, LJN: BI7450, MR 2009/45, Rechtbank ’s-Gravenhage, zp Zutphen, 20 May 2009, Awb 08/33108, MR 2009/43, Rechtbank ’s-Gravenhage, zp Roermond, 26 March 2009, Awb 08/20300, LJN: BI0314, Rechtbank ’s-Gravenhage, zp Amsterdam (mk), 18 February 2009, LJN: BH3841, JV 2009/162, Vz.. Rechtbank ’s-Gravenhage, zp Amsterdam, Awb 07/36074, 07/40243, LJN: BD9130, JV 2008/351 and. Vz. Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, Awb 08/23668, LJN: BD9715, JV 2008/382. 78   Vz. Rechtbank ’s-Gravenhage, zp Amsterdam, 17 April 2009, Awb 08/16119, LJN: BI2067, JV 2009/256. See: sub-section 4.3. 79  Rechtbank ’s-Gravenhage, zp Middelburg, 28 April 20110, Awb 10/15872, 10/15873, 10/15874, LJN: BM3107, 80   Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, 12 May 2009, Awb 08/35974, LJN: BJ4147. 81   Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, 26 May 2009, Awb 08/39106, LJN: BI7452, MR 2009/44 and Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, 12 May 2009, Awb 08/35974, LJN: BJ4147. 82   Rechtbank ’s-Gravenhage, zp Haarlem, 24 August 2010, Awb 09/31177, LJN: BO1406. 75 76

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up paid employment, residence remains lawful until the validity of the shortstay visa expires or where the short-stay visa is revoked.83 From the cases at hand, three somewhat unusual purposes of stay transpire; preparing for the compulsory integration test,84 attending custody proceedings85 and attending the cremation and the mourning of a brother-in-law.86 Admittedly the latter could be classed as a family visit. Preparation for an integration test, however, suggest an intention to stay in a Member State that is longer than the ‘three-out-of-six-month’ period provided for in the SBC and the Visa Code and therefore sits somewhat uneasily with Article 21 Visa Code, that obliges Member States to take into account the third country national’s intention to leave the EU. Procedural grounds used by the Dutch courts to strike down a refusal to grant a short-stay visa are non-compliance with the due diligence obligation,87 insufficient justification of the decision88 and a violation of the obligation to hear the applicant.89 This case law also reveals that where a third party is involved, for instance a guarantor, there is a legitimate interest in legal proceedings and a potential entitlement to legal aid.90 This is an interesting development as short-stay visa applicants, as a rule, find themselves outside the territory of the State where the competent courts ruling on their case are located with no right to remain that allows them to attend these proceedings. If a third party can take on this task, this is certainly a step forward in terms of access to justice.

  Gerechtshof ’s-Hertogenbosch, Criminal Chamber, 5 September 2007, 20-008 127-05, LJN: BB4386. 84   Rechtbank ’s-Gravenhage, zp Amsterdam, 17 September 2009, Awb 09/29111, 09/25711, LJN: BJ9690, JV 2009/487 and Vz. Rechtbank ’s-Gravenhage, zp Amsterdam, 11 September 2009, Awb 09/29335, LJN: BJ9682. 85  Rechtbank ’s-Gravenhage, zp Amsterdam, 12 June 2009, Awb 09/13694, 09/15269, LJN: BI8845. 86   Rechtbank ’s-Gravenhage, zp Haarlem, 19 November 2007, Awb 07/20281, LJN: BC3309, JV 2008/30. 87  E.g. Rechtbank ’s-Gravenhage, zp Haarlem, 11 June 2009, Awb 09/708, LJN: BI8193, Rechtbank ’s-Gravenhage, zp Haarlem, 11 June 2009, Awb 08/45213, LJN: BI8151, Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, 12 May 2009, Awb 08/35971, LJN: BJ4027 and Rechtbank ’s-Gravenhage, zp Utrecht, 11 June 2008, Awb 07/46163, LJN: BD4213. 88   E.g. Rechtbank ’s-Gravenhage, zp Zutphen, 20 May 2009, Awb 09/33106, MR 2009/43 and Rechtbank ’s-Gravenhage, zp Zwolle, 19 May 2008, Awb 07/40318. 89  E.g. Rechtbank ’s-Gravenhage, zp Zwolle, 19 May 2008, Awb 07/40318, Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, 12 May 2009, Awb 08/35974, LJN: BJ4147and Rechtbank ’s-Gravenhage, zp Dordrecht, 8 April 2008, Awb 07/6163, LJN: BD4756. 90   Rechtbank ’s-Gravenhage, 6 April 2009, Awb 08/6322, JV 2009/251. 83

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3.3.  Purpose and conditions of the intended stay The obligation to declare the purpose and conditions of the intended stay is found in Article 5(1)(c) SBC. Further details are set out in Annex I to the SBC that provides four legitimate reasons for short-stays: – business trips, – study or other types of training, – tourism or private reasons and – attendance of political, scientific, cultural, sports or religious events or other reasons. For each reason mentioned there is a non-exhaustive list of supporting documents that can be submitted to substantiate the purpose if the intended stay.91 As reflected on in the previous sub-section, following a language course to prepare for the compulsory integration test was accepted by the Amsterdam District Court as a valid reason for a short-stay, though the purpose of the stay by definition reflects the individual’s intention to relocate the centre of activities to the Netherlands as the integration test is obligatory where family reunion is envisaged.92 In a case where more than one purpose of intended stay had been provided, the Utrecht District Court found a failure to justify the purpose of intended stay.93 3.4.  Means of Subsistence Regarding the availability of financial means, which is one of the two conditions found in Article 5(1)(c) SBC, section 2 specifies that these have to be available for ‘the duration of the intended stay as well as the return to the country of origin or transit where admission is certain or that the third country national is in a position to acquire such means lawfully during his/her stay’. Article 5(3) SBC explicitly provides that an assessment of the available financial means must be ‘in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of

  Article 5(2) SBC.  President Rechtbank ’s-Gravenhage, zp Amsterdam, 28 May 2009, Awb 08/34330, LJN: BI8787, MR 2009/50. 93   Rechtbank ’s-Gravenhage, zp Utrecht, 22 December 2008, Awb 08/42700, LJN: BG9131, cons. 2.13. 91 92

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days stayed’, obliging Member States to adopt tailor made decisions. The Member States have communicated reference amounts to the Commission;94 for the Netherlands this is € 34 per day. The availability of means of subsistence can be established by presenting cash, travellers’ cheques and credit cards, as well as a declaration of sponsorship, if provided for by national law. If  a third country national intends to stay with a host, a letter of guarantee suffices.95 A form for sponsorship/private accommodation that meets the requirements of Article 14(4) of the Visa Code is found in Article 29 and appendix 6c Voorschrift Vreemdelingen.96 Besides accommodating the requirements set out in the aforementioned provision of the Visa Code, the purpose of this new form is to avert bogus sponsorships and ensure that adequate financial means are available. For the latter purpose, by signing the form, the sponsor takes on the responsibility to recover any costs incured by the Dutch State or other public authorities relating to residence, medical care and repatriation to a maximum of € 10,000 a year.97 Recovery of costs is possible up to five years or a shorter period when adequate proof that the third country national has left the Schengen Area is available, e.g. a Schengen exit stamp or an entry stamp of the State of origin. Under the new rules, a third country national who has sufficient means of subsistence will only need a declaration of accommodation. To ensure correct use of the form, the local council has to authenticate the signature on the form; where this has not occurred the form, though signed, is null and void.98 As these rules have just been introduced, it is to be awaited if and how they will affect short-stays. 3.5. SIS-alerts The next entry condition are alerts in the SIS on unwanted aliens, mentioned in Article 5(1)(d) SBC. Article 96 SIA still provides the grounds justifying

  Article 5(3) 2nd paragraph SBC and Reference amounts for the crossing of the external borders, as referred to in Article 5(3) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ EU 2006, C 247/3. 95   Article 5(3) 3rd paragraph SBC. 96  Regeling van de Minister voor Immigratie en Asiel van 22 december 2010, nummer 5678736/10, houdende wijziging van het Voorschrift Vreemdelingen 2000 (honderdeneerste wijziging), Staatscourant, December 30, 2010, No. 20991. 97   The maximum sum was raised from €5,000 to € 10,000, to reflect real administrative costs and deter bogus sponsors. 98   Stcrt. 2010, No. 20991, p. 5 94

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such alerts which are made by national authorities in their national section of the SIS (N-SIS) and are communicated to the other Member States through the central-SIS computer in Strasbourg (C-SIS) that feeds the information, upon request, into the other Member States’ N-SIS, enabling officials issuing visas, residence permits and dealing with the administration of the movement of third country nationals to act accordingly.99 On January 1, 2010, 736,868 valid Article 96-alerts were recorded in the SIS100 of which 16,595 were made by the Dutch authorities.101 Comparison of the overall figure of Article 96-alerts on January 1, 2010 with that of December 31, 1999, namely 764,851, reveals that the difference is negligible.102 A similar comparison of Dutch entries, however, reveals an increase of Article 96-alerts in this period from 7,891 to 16,595 which is an increase of 8,704 (approximately 110%) alerts in ten years. This significant difference might be explained by the fact that Article 96-alerts can be stored for up to ten years;103 the increase difference could thus be attributed to the fact that the obligation to delete an alert only takes effect after ten years, meaning that the obligation to remove SIS-alerts first took effect in 2005, i.e. new reports could then start replacing old ones.104 Whether this is the correct explanation cannot be ascertained from the data available, but may be corroborated by the data on SISreports at the end of 2009 when they are available. Although the SIA sets out when an alert can be made, the Contracting Parties found room to develop their own, national, practices. The accompanying problems were not only felt by the individual, who could not enter the Schengen Area, but also by Member States who found themselves withholding entry permission due to another Member State’s SIS-alert which they would never have made themselves. The cases of Ms. Mills105 and Mr. and Mrs. Moon106 illustrate that the individual has to first seek correction of the SISalert before permission to cross the EU-external border can be granted by any   Article 101 SIA.   Note from the General Secretariat of the Council, February 5, 2010, 6162/10. 101   Nationale Ombudsman, Toegang verboden. Onderzoek naar de opname van vreemdelingen in het Schengen Informatie Systeem en de informatievoorziening hierover, Report 2010/ 115 (June 2010), p. 6, available at: http://www.nationaleombudsman.nl/rapporten/grote _onderzoeken/2010%20SIS/ documents/Rapport2010–115.pdf. 102  Justice, The Schengen Information System; A Human Rights Audit, Justice 2000, p. 18. 103   Article 112 SIA. 104   Article 113 SIA. 105  H. Staples, ‘Adjudicating the External Schengen Border’, in: E. Guild & P. Minderhoud, In Search of Europe’s border, The Hague: Kluwer Law International 2003, p. 229. 106   Rechtbank ’s-Gravenhage, zp Amsterdam, 23 March 2007, Awb 06/37989, JV 2007/345, with commentary E. Brouwer.     99 100

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Member State. The option available to the refusing Member State, that is obliged to withhold entry permission under the SBC-rules, is to contact the reporting Member State for further details on the report and if inaccurate, inform the latter accordingly. If this does not have the desired effect, it can then submit the case to the Joint Supervisory Authority (JSA) for its opinion.107 As the reporting Member State is the only one that can amend data in the SIS, an individual’s right to have data corrected and for this purpose instigate legal proceedings in any Member State108 is somewhat obsolete as long as there is no sanctioned obligation for the reporting Member State to comply with a ruling that is handed down by a national court of another Member State. This might explain why the number of new cases on SIS-alerts is insignificant. Ms. Mills and the Moons are not the only third country nationals reported where Article 96 SIA does not justify such a report. In the initial years of Schengen co-operation most of the French entries concerned immigrants from Eastern Europe, suspected of involvement in espionage and Roma from Central Europe.109 Rejected asylum seekers are, on no account, to be entered in the SIS, nevertheless, Germany has reported them and Italy is known to have reported unwelcome immigrants in the SIS.110 Another expression of non-compliance are SIS-alerts on EU-citizens who cannot be subject of a Article 96-report as these are only permitted in the case of ‘aliens’, defined as ‘any person other than a national of a Member State of the European Communities’.111 In April 2005, Member States were requested to check their national data and delete all Article 96-alerts on EU citizens from the SIS. The figures reveal that by February 16, 2006, 503 alerts on EU citizens were still included in the SIS.112 By January 30, 2007, this number had dropped to 46 and included citizens from 16 Member States.113 A recent report of the JSA reveals that Member States are at least taking their responsibility towards EU-citizens seriously by regularly checking their N-SIS for incorrectly   Article 106(2)-(3)SIA. The joint authorities proposals to problems are ‘forwarded to the authorities to which the national supervisory authorities submit their report’ (Article 115(4) SIA. 108   Articles 110–111 SIA. 109   A decision to delete the records concerning Roma was adopted in 1998; Justice, The Schengen Information System; A Human Rights Audit, Justice 2000, p. 35. 110  Justice, The Schengen Information System; A Human Rights Audit, Justice 2000, p. 35. 111   Article 1 SIA. 112   Council of the European Union, Note from the Presidency, SIS Alerts of EU citizens pursuant to Article 96 SIC, March 3, 2006, 7005/06 LIMITE. 113   Council of the European Union, Note from the Austrian delegation on Alerts of EU Citizens in the SIS pursuant to Article 96 SIC (Brussels February 6, 2007) 6071/07 LIMITE. 107

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reported EU-citizens.114 The problems encountered by an EU-citizen’s third country national family members, however, remain (sub-section 4.3). 3.6.  Public Policy, Internal Security, Public Health and International Relations No further details are provided in the SBC regarding the last condition for entry found in Article 5(1)(e) SBC, being: the third country national may ‘not be a threat to public policy, internal security, public health or the inter­ national relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds’.

This provision differs from Article 5(1) SIA in the sense that ‘public health’ has been added as a reason to refuse entry permission. The justification used to add this condition to the list of entry conditions was the necessity to align the position of third country nationals with that of nationals of a Member State, who can be refused entry permission if they are found to endanger public health.115 How a Member State is expected to assess whether a third country national endangers the public policy etc. of any of the Member States, remains a question. One thing is sure, this infomration is not transmit through the SIS as SIS-alerts are already listed in sub-section d! The Amsterdam District Court has ruled that public policy in section e cannot be read as meaning ‘illegal residence’.116 In both its rulings, illegal residence was assumed because the applicant had not satisfied the Dutch authorities that she would return to her home-country on expiry of her ‘three-out-of-six-months’ permitted stay. Justification to strike down this decision was found in Article 7(3)(vi) of the SBC; the fact that illegal residence is not included in this provision in combination with the omission to relate public policy to illegal residence in national policy rules (Vc 2000, A2/4.2.5) were put forward as reasons to believe that public policy was not at stake.117

  Report of the Schengen JSA on the Follow-up of the Recommendations Concerning the Use of Article 96-Alerts in the Schengen Information System, Report 10–11Rev.01 (Brussels, 26 November 2010) p. 9–10, http://www.statewatch.org/news/. 115   Article 29 Directive 2004/38/EC. 116  President Rechtbank ’s-Gravenhage, zp Amsterdam, 15 November 2007, Awb 07/8470, LJN: BB9898, cons. 3.2 & ibid., 28 May 2009, Awb 08/34330, LJN: BI8787, MR 2009/50, cons. 4.12. See also: Rechtbank ’s-Gravenhage, zp Groningen, 3 April 2009, Awb 08/35111, LJN: BI1740. 117   President Rechtbank ’s-Gravenhage, zp Amsterdam, 15 November 2007, Awb 07/8470, LJN: BB9898, cons. 3.2. 114

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3.7.  In Sum There is no doubt that the external borders case law load has increased significantly post-Europeanization of external border policies, though it is mainly the rules on short-stay visa that are debit to this development in the Netherlands. Refusals to issue a short-stay visa most frequently contested are the ‘intention to return’ and ‘means of subsistence’. Cases on SIS-alerts, travel documents and public order are few or non-existent. Are third country nationals not experiencing problems in satisfying these conditions or are they just not pursuing legal remedies to contest decisions to withhold entry permission or not issue a short-stay visa? To answer this question field research into the number of applications for short-stay visa refused and the reasons for refusal is required. Speculating it could be argued that the vast increase in the number of SIS-alerts might mean that refusals using a SIS-alert as justification are not being contested. The Dutch courts dealings with external border and short-stay visa cases seems to justify the conclusion that they are taking European standards seriously; they have not accepted a broad reading of ‘intention to return’ that would allow one single contra-indication justify a refusal to issue a visa and they have struck down the duurzaamheidsvereiste that was attached to the obligation to posses sufficient financial means, nipping extensive use of discretionary powers in the bud. 4.  At the External Border The logic underlying external border controls remained unchanged with the entry into force of the SBC: non-compliance with Article 5(1) SBC equates to withholding entry permission. Exceptions, however, are provided for in Article 5(4) SBC, which allows Member States to waive entry conditions in a limited number of cases (sub-section 4.2). Before these exceptions are discussed, procedural guarantees as prescribed by European law will be considered (sub-section 4.1). Then the position of an EU-citizen’s third country national family members, who benefit from the rules set out in Directive 2004/38/EC but, by virtue of their nationality, are also captured by the SBCrules, will be discussed (sub-section 4.3). The final sub-section will consider the issue of border controls disguised as security checks (sub-section 4.4). 4.1.  Withholding Entry Permission An improvement on the SIA is that the SBC explicitly provides that a decision  withholding entry permission has to be substantiated, providing the

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i­ndividual with precise reasons for the refusal, and adopted ‘by an authority empowered by national law’.118 For this purpose a standard form was designed, that has to be filled out by the official and counter-signed by the individual.119 Chapter II sets out how controls at the external border are to be conducted and includes in Article 6 SBC the obligation to respect human dignity, to ensure equal treatment and observe the principle of proportionality. An example of a case where entry permission was withheld at the Dutch section of the external border, though the third country national did not intend to stay in the Netherlands, concerned a Somali national resident in Saudi Arabia who was stopped and detained at Schiphol Airport following a check on the evidence she had submitted – a hotel reservation printout and her friend’s phone number – by the Dutch border officials who were not convinced that the purpose of her travels was to visit a friend in Vienna.120 Reiterating that border checks are to fully respect human dignity, executed in a professional and respectful manner and proportionate to the objectives pursued, the Amsterdam District Court found a breach of the SBC as the border authorities had refused to double check the evidence though explicitly requested. The decision to withhold entry permission was found to violate the obligation of due diligence, as thorough checks on entry include a detailed examination, including the verification of the point of departure and destination, the purpose of the intended stay and, if necessary, the corresponding supporting documents. Interestingly, the Amsterdam District Court observed that no contact had been sought with the Austrian authorities who had issued the short-stay visa and at that point had assessed the credibility of the statements concerning the purpose of her stay, but instead had executed a quick and incomplete assessment and in doing so had failed to state what information they still needed, enabling the third country national to provide that information.121 A right to appeal a decision to withhold entry is provided for in Article 13(3) SBC that also establishes that appeals do not have suspensive effect and are governed by national law. Pending an appeals procedure and until such time that entry conditions are satisfied, border guards are obliged to ensure that the third country national does not enter EU-territory.122 The obligation   Article 13(2) SBC.   Article 13(2) and Annex V, part B, SBC. 120   Voorzieningenrechter Rechtbank ’s-Gravenhage, zp Amsterdam, 17 september 2007, Awb 07/34303, LJN: BB8136. 121   Voorzieningenrechter Rechtbank ’s-Gravenhage, zp Amsterdam, 17 september 2007, Awb 07/34303, LJN: BB8136, cons. 3.15. 122   Article 13(4) SBC. 118 119

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to provide an effective remedy was read by the Amsterdam provisional judge as an obligation to ensure swift procedures in which the legality of the decision can be assessed. Where appropriate, under Dutch law a provisional judge is competent to take such measures that approximate the lifting of the entry refusal, though there is a presumption that a decision is lawful.123 A question that was raised in the early days of the SBC was whether EU-rules permitted an oral refusal to grant entry permission. According to the Amsterdam District Court, the obligation to notify a decision to refuse entry permission in writing by using the standard form in Annex V, Part B, SBC, as set out in Article 13(2) SBC and endorsed by the Dutch legislator, has to be respected on all occasions as a procedural requirement that cannot be set aside as provided for in Article 6:22 of the General Administrative Act (Algemene Wet Bestuursrecht, Awb). The judge labelled the obligation to use the standard form as an ‘essential legal safeguard’ that affects the legality of the decision to withhold entry permission if not observed.124 Having said this, an omission to indicate the precise ground(s) to refuse entry permission can be rectified at a later stage, according to the Council of State, as Article 13(3) SBC provides that proceedings are governed by national law.125 In a case concerning the legality of a detention measure that followed a decision to withhold entry permission, the Amsterdam District Court found no violation of Article 13(3) SBC though the obligatory details on legal practitioners were not included in the leaflet on legal aid. It accepted as a matter of fact that when legal aid was requested the border authorities (Koninklijke Marechaussee) acted accordingly.126 In sum, it can be said that the obligation to refuse entry permission in writing, is now firmly established and no longer an issue and judicial pro­ ceedings are available to and used by third country nationals both at the external border and in short-stay visa cases, though there is no right to enter the Netherlands for this purpose. Where a detention measure follows a refusal  to grant entry permission the legality of the entry refusal is presumed,127 even if procedural guarantees, as required by Article 13 SBC, are not fully complied with; i.e. the obligation to provide information on legal practitioners.

  Voorzieningenrechter Rechtbank ’s-Gravenhage, zp Amsterdam, 17 September 2007, Awb 07/34303, LJN: BB8136, cons. 3.9. 124   Ibid., cons. 2.15–2.16. 125   ABRvS 16 October 2008, 200707821/1, LJN: BG1666, cons. 2.4.1. 126   Rechtbank ’s-Gravenhage, zp Amsterdam, Awb 07/20348, 31 May 2007, LJN: BA7393. 127   ABRvS 12 July 2007, 200703945/1, MigratieWeb ve07001415, cons. 2.1.1. 123

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4.2.  Waiver of Entry Conditions Where entry conditions are not satisfied Article 5(4) SBC provides for three exceptions to the general obligation that entry permission is refused. The first exception concerns holders of a residence permit or a re-entry visa issued by a Member State; they can be authorized to enter the territory for transit purposes unless they are listed on a national list of one of the transitMember States and the alert is accompanied by the instruction to refuse entry or transit. To benefit from this exception, the Dutch Council of State ruled that a third country national has to show that onward travel to the Member State that issued the residence permit is guaranteed. As, in the case at hand, neither a flight ticket to Spain, nor information detailing the onward journey were submitted, Article 5(4) SBC was found not to apply.128 Where the refusal is accompanied by a detention measure, there is a presumption that the latter  is lawful, until such moment that the necessary information to ascertain  lawful residence in another Member State is presented to the Dutch authorities.129 Where it is the obligation to possess a short-stay visa that the third country national has failed to comply with Member States can issue a visa at the border along the lines of Article 35 Visa Code. This provision requires the third country national to submit ‘supporting documents substantiating unforeseeable and imperative reasons for entry’. A further condition is that return or residence/transit ‘through States other than Member States fully implementing the Schengen acquis is assessed as certain’. A short-stay visa issued at the border is valid for 15 days and the obligation to have a travel medical insurance may be waived.130 Finally, entry permission may be granted where humanitarian grounds, national interests or international obligations thus require. This allows Member States to comply simultaneously with the SBC and their international obligations, in particular the 1951 UN Refugee Convention and the European Convention on Human Rights.131 If it is an alert in the SIS that justifies the refusal, the other Member States must be informed. An example of a case where humanitarian considerations were not considered present concerned a mother who travelled to the Netherlands to visit her son and his family on a   ABRvS 16 October 2008, 200707821/1, LJN: BG1666, cons. 2.5.1.   ABRvS 22 February 2008, 200707416/1, LJN: BC5224, cons. 2.1.6 130   Article 35(1)(b)-(c) & (2) Visa Code. 131   Compliance with the ECHR is also prescribed through Article 6(3) TEU and consideration 20 SBC that also mentions the EU’s Charter on Fundamental Rights that, post-Lisbon, is binding for the Member States and features the right to asylum its Article 18. 128 129

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valid Jordanian passport and Schengen visa that was not, however, valid for the entire duration of her stay. According to the Dutch Council of State, the lack of precision in the definition of humanitarian considerations leaves Member States with a margin of appreciation when determining whether derogation is appropriate. According to Dutch Constitutional arrangements, this margin of appreciation belongs to the executive, leaving the judiciary empty handed.132 4.3.  Upholding Rights of an EU-citizen’s Third Country National Family Member As all persons crossing the external border are subject to so-called minimum checks. The purpose of these checks is to establish the identity through a rapid and straightforward verification of travel documents.133 Where a minimum check reveals that free movement rules apply, thorough checks are not permitted and travel documents are only stamped if a third country national does not present a residence permit issued by a Member States evidencing a right to free movement as set out in Directive 2004/38/EC.134 The question whether a third country national family member must be treated along the lines of the SBC or Directive 2004/38/EC has proven problematic when travelling alone. According to the Dutch Council of State a third country national family member travelling alone is not ‘accompanying or joining the EU-citizen in the Netherlands’ and therefore the SBC takes precedence over Directive 2004/38/EC;135 a reading that can be questioned in the light of the word ‘joining’ in Article 3(1) of Directive 2004/38/EC, which implies that cross border movement in this Directive is designed to reunite the third country national with his/her EU-family member already in a Member State. A different issue with far-reaching implications for third country national family members of EU-citizens are SIS-alerts. Even if in full compliance with EU-law at the time made, problems arise where the SIS-alert does not satisfy

  ABRvS 26 January 2010, 200904018/1/V1, LJN: BL1460, JV 2010/107, cons. 2.3.2, overruling: Rechtbank ’s-Gravenhage, zp Amsterdam, 4 May 2009, Awb 08/20463, LJN: BI4390, JV 2009/277. 133   Article 7(2) SBC. 134   Article 10(2) SBC. See also: consideration 5 SBC. 135   ABRvS, 26 May 2010, 200908732/1/V3, LJN: BM6096, cons. 2.4. The Council of State has, however, recognised that the Citizens Directive takes preference over the SBC, by virtue of Article 2(5)(a) and 3(a) SBC. See also: ABRvS 22 February 2008, 200707416/1, LJN: BC5224, cons 2.1. 132

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the more restrictive reading of public policy and national security in Articles 27–28 of Directive 2004/38/EC when a third country national becomes an EU-citizen’s family member. Problems have occurred in relation to the issuing of short-stay visa and residence permits and at the external EU-border.136 In  2006, the ECJ found that where proof of ones status as beneficiary of Directive 2004/38/EC has been provided, a SIS-alert must be treated as ‘evidence that there is a reason to justify refusing him entry into the Schengen Area’.137 This, however, does not relieve the national authorities from first verifying whether there is a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ (cons. 55). For this purpose the reporting Member State, thus requested, has to provide such information to another Member States that will enable the latter to assess the danger emanating from the person concerned (cons. 56). This information is provided through the Sirene network, that was set up for precisely this reason and whose Handbook sets out that information requested by Member States has to be provided ‘as soon as possible, and the response must be given within 12 hours (para. 2.2.1.)’. What amounts to ‘as soon as possible’ depends on the circumstances at hand. In the case of an entry refusal, the time frame set by the ECJ is ‘rapidly’ (cons. 58). Though the District Courts, had ruled otherwise the Dutch Council of State found that a Dutch SIS-report concerning an EU-citizen’s third country national family member only has to be reassessed when that family member has exercised the right to accompany or join the EU-citizen in the host-Member State. If the latter is not the Netherlands, the SIS-alert will not be revoked until the host-Member State has agreed to grant residence permission along the lines of Directive 2004/38/EC, as required by Article 25(1) SIA. Where the host-Member State refuses to issue a residence permit or revokes a residence permit evidencing a right of residence as an EU-citizen’s family member, the Dutch SIS-alert remains in place.138 This approach makes travelling in the EU impossible for third country national family members subject of a SIS-alert;

  ECJ case C-503/03, Commission v. Kingdom of Spain,[2006] ECR I-1097 (short-stay visa and external borders), ABRvS 9 November 2010, 201003131/1V1, JV 2011/9, with commentary H. Oosterom-Staples and ABRvS, 6 December 2010, 200907834/1/V1, LJN: BO7026, JV 2011/49 (residence permits). 137   ECJ case C-503/03, Commission v. Kingdom of Spain [2006] ECR I-1097, cons. 53. 138  ABRvS, 9 November 2010, 201003131/1V1, JV 2011/9, cons. 2.1.3 & 2.1.6 and ABRvS, 6 December 2010, 200907834/1/V1, LJN: BO7026, JV 2011/49, cons. 2. See, however, e.g. Rechtbank ’s-Gravenhage, zp. Amsterdam (mk), 3 March 2010, AWB 08/44901, JV 2010/203, LJN: BL9814 and Rechtbank ’s-Gravenhage, zp ’s-Hertogenbosch, Awb 08/34755, 14 September 2009, LJN: BJ8526. 136

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if subjected to a check, either at the border or behind, the authorities will have to act in accordance with the rules on SIS-reports. At the very best, the Member State executing the check will contact the Dutch authorities who will then have to provide information on the reasons for the alert along the lines of ECJ’s case law. 4.4.  Security Checks vs. Border Controls The last provision that needs further consideration is Article 21 SBC. Its section a explicitly specifies that the abolition of internal border controls does not affect a Member State’s powers to exercise police powers and security checks in the border region or to adopt legislation containing an obligation to carry id-papers or documents. According to a non-exhaustive139 list of criteria a police measure does not equate to a border control where it: – does not have border control as an objective, – is based on general police information and experience regarding possible threats to public security and aims, in particular, to combat cross-border crime, – is devised and executed in a manner clearly distinct from systematic checks on persons at the external border, and – is carried out on the basis of spot-checks.140 In Melki and Abdeli, the ECJ determined when a police check is a disguised border check.141 Starting from the premise, as set out in Article 2(9) and (11) SBC, that a border control is designed ‘first, to ensure that persons may be authorised to enter the territory of the Member State or authorised to leave it and, second, to prevent persons from circumventing border checks’, the ECJ found that by including specific rules regarding its territorial scope, checks ascertaining whether an obligation to hold, carry and produce papers and documents are fulfilled may be evidence of a police control having ‘equivalent effect’ (cons. 71–72). To ensure compliance with Articles 20 and 21(a) SBC, the ECJ found that ‘national legislation granting a power to police authorities to carry out identity checks – a power which, first, is restricted to the border area of the Member State with other Member States and, second, does not depend upon the behaviour of

  COM(2010) 554 final, p. 3. See also: ABRvS, 10 October 2009, 200805226/1, LJN: BG0597, cons. 2.1.2. 140   Article 21(a)(i)-(iv) SBC. 141   ECJ joined cases C-189/10 & C-189/10, 22 June 2010, n.y.r. 139

122  Helen Oosterom-Staples the person checked or on specific circumstances giving rise to a risk of breach of public order – must provide the necessary framework for the power granted to those authorities in order, inter alia, to guide the discretion which those authorities enjoy in the practical application of that power. That framework must guarantee that the practical exercise of that power, consisting in carrying out identity controls, cannot have an effect equivalent to border checks, as evidenced by, in particular, the circumstances listed in the second sentence of Article 21(a) [SBC]’ (cons. 74).

Though most Member States admit to carrying out police checks in their border areas, the information available on the reasons and frequency of checks is insufficient to determine whether these checks comply with the afore listed criteria.142 Following the Melki and Abdeli ruling, the Dutch Council of State reversed an earlier decision143 to the extent that the framework desired by the ECJ does not allow the use of policy rules to establish how controls are executed, as was the case in the Netherlands.144 The Council of State confirmed its earlier decision that the objective of so-called MTV-checks which are executed in the Dutch border area mean that they are effectively border control measures.145 Responding to the ECJ’s ruling in Melki and Abdeli, the Commission has requested Member States to bring their legislation in line with this ruling and has committed itself to ‘continue to carefully assess complaints and to address Member States in order to obtain explanations. If the explanations are not satisfactory, the Commission will use all available means, including the launching of infringement procedures, in order to ensure the correct application of Union law’.146 5.  The Balance Sheet It is now time to assess whether Europeanization of external border policies has silenced criticism voiced on intergovernmental Schengen cooperation. Three points need to be considered: Has it solved the democratic deficit and provided openness? Has it provided effective legal remedies? Has it curtailed discretionary powers?   COM(2010) 554 final, p. 5.   ABRvS, 10 October 2008, 200805226/1, LJN: BG0597, cons. 2.3.2. 144   ABRvS 28 December 2010, 201010789/1/V3, LJN: BP0427, cons. 2.7.2.1. 145   ABRvS 28 December 2010, 201010789/1/V3, LJN: BP0427, cons. 2.7. 146  Report from the Commission to the European Parliament and the Council on the application of Title III (Internal Borders) of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), Brussels, 13 October 2010, COM(2010) 554 final, p. 5. 142 143

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Starting with the democratic deficit complaint it can be argued that the answer is in the affirmative. Europeanization gave the European Parliament a voice in external border matters; it is now allowed to veto any proposal it finds does not befit the European Union. Besides giving the European Parliament a voice, Europeanization equates to an obligation to publish legislative acts,147 has provided more transparent negotiations procedures and brought external borders within the reach of general principles of EU-law, amongst which the principles of supremacy,148 direct effect,149 Union-loyalty,150 effet utile, the protection of fundamental rights and freedoms and the rules on data protection, which is a clear winner in a policy area where individual rights are at stake. The obligation to protect fundamental rights and observe general principles of European law has not only set the minimum level for harmonization,151 but can also provide guidelines to national courts interpreting the legislative acts. The principles of supremacy, direct effect and Union-loyalty should require that national rules that violate European standards are set aside. A major improvement to the situation in 2000 in terms of openness, albeit one that cannot be attributed to Europeanization but to technological developments, is the accessibility of Dutch case law which is now readily available through the internet.152 Has Europeanization contributed to effective rights? Understanding ‘effective rights’, as individual rights which an individual can enjoy and uphold, if necessary in legal proceedings, the following can be said. The Dutch case load begs the conclusion that individuals are able to take their case to the national courts when they feel their right has been violated. My fear, that because there is no right to access a Member State for the purpose of conducting legal proceedings willl affect individual rights appears to be misplaced, as the majority of cases before the Dutch courts concerned short-stay visa applications. Though pleasantly surprised, I still feel that it is too early to conclude that all is well in terms of enforcing rights.153 There might be other explanations why short-stay visa cases take the lead; it might be interested third-parties who,

  Article 297(1) TFEU.   ECJ case 6/64, Costa v. ENEL [1964] ECR 585. 149   ECJ case 26/62, Van Gend en Loos [1963] ECR 13. 150   Article 4(3) TFEU. 151  Compare: ECJ case C-540/03, European Parliament vs. Council [2006] ECR I-5769, cons. 62 and 104. 152  The case law used in this contribution was retrieved form: www.rechtspraak.nl, www .migratierecht.nl and www.MigratieWeb.nl. 153   H. Oosterom-Staples, ‘Effective Rights for third-Country Nationals’, in: H. Lindahl, A Right to Inclkusion and Exclusion? Normative Fault Lines of the EU’s Area of Freedom, Security and Justice, Oxford: Hart Publishing 2010, p. 82–90. 147 148

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operating as intermediary, are exercising legal remedies in Dutch courts for or on behalf of third country nationals. The leading position of short-stay visa cases might also be explained by the fact that third country nationals are just not arriving at the EU’s external border where they can be refused entry permission because they have been stopped on their travels as remote control measures, i.e. carriers’ sanctions and FRONTEX-operations, are doing what they were designed to do: curtail irregular immigration. To rebut this option, reliable data is needed on refusals by carriers’ and FRONTEXoperations. This data will be hard to obtain as decisions instigated by carriers’  sanctions are not immigration decisions and do not leave a paper trail evidencing a breach of immigration rules. As for FRONTEX-operations, the data available is provided for by the agency itself which can hardly be labelled objective. Effective rights, meaning rights that are enjoyed by individuals touches on the issue of discretionary powers. The picture here is mixed. On the positive side, there are provisions, in particular those setting out procedures, that are protecting the individual. E.g. short-stay visa authorities are obliged to inform and refund a tnc if the application for a shor-stay visa was not lodged with the competent authorities (Artikel 18(2) Visa Code) and Article 11(2) SBC provides for the use of any credible evidence to substantiate a claim of compliance with the ‘three-out-of-six-month’ period. Though in its infancy, we are witnessing the ECJ applying its principles and practices developed within the context of free movement rights by analogy to cases concerning external border rules; non-compliance can be sanctioned, albeit with due respect to EU-law giving the principle of proportionality a part to play in external border policies. The ECJ does not stand alone in upholding external border rules; the Joint Supervisory Authority has been successful in ensuring better observance of Article 96 SIA154 and the Commission has promised to launch infringement proceedings if systematic checks behind the borders persist and, ultimately, amend Article 22 SBC, if necessary.155 At the national level the picture is less straightforward, which, in all fairness, might be explained by the early days of European rules, with national authorities and courts having to find their way through legislation in dire need of further clarification. The procedural guarantees, set out in Article 13 SBC seem to be integrated into the Dutch legal order, with a few points of concern; i.e. what are the implications on access to justice of not providing written information on legal practitioners? Evidence that the highest Dutch court, though it has given a less broad

  JSA (2010) p. 9–10.   COM(2010) 554 final, p. 5.

154 155

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reading to the obligation to pay due respect to rights under Directive 2004/38/ EC than the lower courts where third country national family members are subject of a SIS-alert, will follow the ECJ in due course, even if this will mean a more liberal reading than in its earlier cases, can be found in that court’s ruling concerning the Dutch rules on checks behind the border. At this point in time, it is too early to provide a conclusive answer to the question whether Europeanization has solved all problems and does not give rise to new concerns, though it does appear to be working towards effective rights. In general the Dutch case law on external borders and short-stay visa merits the conclusion that European standards are being taken seriously; a broad reading of ‘intention to return’ that would allow one single contraindication to justify a refusal to issue a visa was not accepted, the duurzaamheidsvereiste that was attached to the obligation to posses sufficient financial means was nipped in the bud and general principles of law, e.g. due diligence, were put forward as justification for an obligation to assess evidence submitted at the border thouroughly, which could include contacted the authorities of the short-stay visa issuing State, before withholding entry permission.

The EU Acquis on Irregular Migration Ten Years On: Still Reinforcing Security at the Expense of Rights? Ryszard Cholewinski* 1. Introduction Migrants in an irregular or undocumented situation1 are often portrayed as carriers of many ills and as the vanguard of a much larger migrant army waiting in the wings to invade and plunder the social welfare systems of affluent European nations. This negative picture, exaggerated frequently in the media and fuelled by political and electoral agendas, inexplicably turns a blind eye to the simple fact that such migrants are human beings possessing fundamental and inalienable rights. Indeed, this could not have been more clearly underlined than by the tragedy in Dover, England in 2000 when 58 Chinese nationals from Fujian province died of asphyxiation in a lorry while attempting to enter the United Kingdom unlawfully.2 Although many migrants in an irregular situation might not qualify in most European countries as refugees under current restrictive applications of the refugee definition in the 1951 Geneva Convention Relating to the Status of Refugees [hereinafter Geneva Convention],3 they may often have good and strong reasons for leaving their

*  The views expressed in this article are my own and do not necessarily reflect or engage those of the ILO. Any errors or omissions in this article remain my responsibility alone. 1   This article uses migrant(s) ‘in irregular situation(s)’ or ‘in irregular status’ and ‘undocumented’ migrants to refer to those foreign nationals who enter a country clandestinely or without authorization; or who are admitted lawfully but then stay beyond their permitted period of admission; or who enter lawfully but then work without permission. The terms ‘irregular’ and ‘undocumented’ are considered to be more neutral and less stigmatizing and demeaning than the use of ‘illegal’ migrants/migration (used only in this article when they appear in quotations or titles of documents), which often gives the incorrect impression that the persons concerned are not entitled to any rights. It should however be noted that use of the latter terminology largely predominates in EU measures and documents, although ‘irregular migration’ and ‘irregular migrants’ has now begun to appear in some recent Commission texts. See e.g. European Commission, Evaluation of EU Readmission Agreements, COM (2011) 76 final of 23 Feb. 2011. 2   T. Reid et al., ‘58 die in lorry ride to hope’, The Times, 20 June 2000. 3   Geneva Convention Relating to the Status of Refugees (28 July 1951, 189 UNTS 137) [hereinafter Geneva Convention], Art. 1. Studies have revealed that migrants illegally smuggled into

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countries of origin and seeking to stay in the destination country after entering without authorization (or remaining beyond a limited permission to stay). Indeed, the difficult and protracted situation of some migrants in an irregular situation is officially recognised when governments decide to embark on their regularisation. European Union (EU) Member States acting to prevent irregular migration stand on firm ground as far as international law is concerned. International human rights law provides for no general right to enter a state unless the persons concerned are entering their own country4 or are refugees. This first group applies clearly to citizens, although a generous interpretation of this right would also extend it to resident non-citizens of the state.5 Within a specific regional arrangement, the Treaty on the Functioning of the European Union (TFEU) provides for Member State nationals with ‘the right to move and reside freely within the territory of the Member States’.6 A right to enter, therefore, exists in this context for non-nationals and can only be limited by strictly defined criteria based on public policy, public security or public health grounds.7 The EU envisages also a right of free movement internally for ‘all persons’, who include lawfully resident third-country nationals.8 However, the position of migrants in an irregular situation resident and employed within EU Member States is viewed in an unfavourable light. This article argues that the EU’s approach to date in addressing irregular migration has lacked balance because of a failure to devote sufficient attention to the protection of the rights of migrants in an irregular situation in the context of a more comprehensive approach to the problem. It contends that an EU agenda based largely on security aspects cannot alleviate the problem of irregular migration in the long term. Although a more rights-based comprehensive approach was signalled in some of the earlier communications issued by the

the United Kingdom are often genuine refugees. J. Morrison, The Cost of Survival: The Trafficking of Refugees into the UK, London: Refugee Council, July 1998. For the definitional issues concerning the concepts of migrant smuggling and trafficking in persons, see Section 3.4.3 below. 4   See Art. 13(2) of the Universal Declaration of Human Rights (UDHR) (10 Dec. 1948, UN GA Res. 217A (III) ) and Art. 12(4) of the International Covenant on Civil and Political Rights (ICCPR) (16 Dec. 1966, 999 UNTS 171). 5   For support for this broader view, see M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, Kehl: Engel 1993, p. 219, para. 48. 6   Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), OJ 2010 C 84/47, Art. 21. 7   Art. 45 TFEU. 8   See respectively Art. 26(2) and Art. 77(1)(a) TFEU.

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European Commission, this has not found its way into the EU measures that have since been adopted. The first part of this article considers briefly the attempts of the Commission to address the problem of irregular migration and to gain greater competence in this area. It traces developing EU competence on irregular migration from intergovernmental cooperation on asylum and immigration, both outside and within EU structures, which led to the adoption of a number of ‘soft law’ measures, to the transfer of asylum and immigration issues to EU competence  by virtue of the Amsterdam Treaty. The article considers subsequent statements on the projected implementation of the post-Amsterdam Treaty arrangements, provides an overview of the EU acquis on irregular migration  as it stood in 2000 and then a brief synopsis of the measures adopted thereafter. Given that this article is an updated version of the article published in the European Journal of Migration Law in 2000, its aim is not to be comprehensive in this respect, but to highlight the evolution of this acquis.9 Finally, the article considers some of the limited positive EU measures that have been adopted and calls for a greater emphasis on a rights-based comprehensive approach. 2.  The Development of EU Policy on Irregular Migration 2.1.  Striving for Competence It is hardly surprising that the European Commission’s interest with irregular migration coincided with concerns expressed by international organisations at the growth of this phenomenon after the stop on immigration during the oil crisis in the early 1970s. It should be emphasised that these concerns were not only aimed at preventing irregular migration but also at addressing the abusive conditions to which many migrants in an irregular situation were subjected. The United Nations (UN) adopted a number of resolutions at this time focusing on the exploitation of such migrants by unscrupulous traffickers,10 while the International Labour Organisation (ILO) adopted the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143).11 In its   For a considerably fuller treatment, see R. Cholewinski, ‘Control of Irregular Migration and EU Law and Policy: A Human Rights Deficit’, in: S. Peers and N. Rogers, (eds), EU Immigration and Asylum Law: Text and Commentary, Leiden: Martinus Nijhoff 2006, p. 898–941. 10   See e.g. ECOSOC Res. 1706 (LIII) of 28 July 1972; GA Res. 2920 (XXVII) of 15 Nov. 1972; GA Res. 3224 (XXIX) of 6 Nov. 1974. 11   For the text, see the ILO’s Database of International Labour Standards (ILOLEX) at http:// www.ilo.org/ilolex/english/convdisp1.htm. ILO Convention No. 143 has only been ratified by  9

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1974 Action Programme in Favour of Migrant Workers and their Families, the Commission observed in respect of the growth of irregular migration that ‘it is urgently necessary for the Member States to adopt a common approach to deterrent measures’.12 In 1978, the Commission attempted to build more concretely on this by proposing a draft directive to combat ‘illegal migration and illegal employment’, which was based on four objectives: –  strengthening of cooperation between the Member States in the campaign against illegal migration and clandestine employment; –  the adoption of appropriate penalties; –  the fulfilment of employers’ obligations; –  the protection of workers’ rights relating to the work they have carried out.13 These objectives followed to some extent the dual approach developed by the UN resolutions and ILO Convention No. 143, which was to prevent and combat irregular migration but also to protect the human rights of all migrants, including undocumented migrants. However, the directive was never adopted, because of, as the Commission later revealed, ‘difficulties of a political and legal nature in the Council’.14 The lack of action in this area can also be partly explained by the Commission’s limited competence at the time with regard to third-country nationals.15 2.2.  Intergovernmental Cooperation and Development of ‘Soft Law’ The period that followed was characterized by intergovernmental cooperation  on asylum and immigration, which operated initially outside the EU

23 States, including six EU and European Economic Area (EEA) states (Cyprus, Italy, Norway, Portugal, Slovenia and Sweden) and one EU candidate country, the former Yugoslav Republic of Macedonia (FYROM). There is also an earlier ILO instrument protecting migrant workers, the Migration for Employment (Revised) Convention, 1949 (No. 97), which has been ratified by 49 countries, including 10 EU Member States (Belgium, Cyprus, France, Germany, Italy, Netherlands, Portugal, Slovenia, Spain, United Kingdom), Norway and FYROM. However, it is only applicable to lawfully resident migrant workers. 12   COM 2250 of 18 Dec. 1994, p. 24. 13   COM (78) 86 final of 3 April 1978, p. 2, para. 5 (Explanatory Memorandum). 14  See Guidelines for a Community Policy on Migration, COM (85) 48 of 1 March 1985, p. 14, para. 24. 15  See e.g. Cases 281/85, 283-285/85 and 287/85, Re the Immigration of Non-Community Workers: Germany, France, Netherlands, Denmark and the United Kingdom v. EC Commission [1987] ECR 3203. See also E. Guild, ‘Competence, Discretion and Third Country Nationals: The European Union’s Legal Struggle with Migration’, JEMS 24 (1998), p. 613–625, at p. 620.

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framework.16 First, Community ministers responsible for immigration, as they were then known, met regularly to discuss asylum and immigration issues, including irregular migration, adopting a number of ‘soft law’ measures in these areas. Second, the prevention of irregular migration was an important feature of the Schengen Implementing Agreement (SIA), adopted in 1991 to implement the original agreement between France, Germany and the Benelux countries.17 Schengen was viewed as an important laboratory for future EU action to abolish internal border controls with a view to realizing the internal market in which the free movement of goods, persons, services and capital could be ensured.18 This objective necessitated the adoption of flanking measures, including strengthening external borders and a common visa policy. Intergovernmental cooperation was formalized within EU structures with the adoption of the Treaty on European Union (Maastricht Treaty),19 which imposed an obligation on EU Member States to cooperate with regard to matters relating to Justice and Home Affairs (JHA) in Title VI of the Treaty on European Union, commonly known as the third pillar. ‘Combating unauthorized immigration, residence and work by nationals of third countries on the territory of member states’ was specified as an item of common interest.20 Although competence relating to certain aspects of a common visa policy, which was viewed as essential to the effective functioning of the internal market, was transferred to the then ‘Community pillar’,21 other matters relevant to preventing irregular migration remained the subject of intergovernmental cooperation under the third pillar. In its 1994 landmark policy document on Immigration and Asylum Policies, the Commission identified four main levels of action in a comprehensive approach to counter the problem of ‘illegal immigration’:   For an overview, see J. Niessen, ‘Introduction: The European Union’s Migration and Asylum Policies’, in: E. Guild (ed.), The Developing Immigration and Asylum Policies of the European Union: Adopted Conventions, Resolutions, Recommendations, Decisions and Conclusions, The Hague: Kluwer 1996, p. 3–63, at p. 27–41 [hereinafter Developing EU Immigration and Asylum Policies]. 17  Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, 19 June 1990; OJ 2000 L 239/13, entry into force 1 Sept. 1993. The Convention became operational in March 1995. 18   See now Art. 26(2) TFEU. 19   OJ 1992 C 191. 20   Former Art. K.1(3)(c) of the Treaty on European Union. 21   Art. 100c of the then EC Treaty (see now Art. 77 TFEU). 16

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a)  measures designed to prevent illegal immigrants entering the territory of the Community; b)  measures designed to identify persons illegally resident in the Community; c)  defining minimum standards for the treatment of illegal immigrants; and d)  measures to facilitate the repatriation of illegal immigrants.22 Once again, this revealed a dual approach focusing on prevention of irregular migration, but also recognizing the need to protect the rights of migrants in an irregular situation. However, under intergovernmental cooperation, both outside and within the third pillar, this latter aspect was neglected in favour of a largely security-based agenda. The measures adopted dealt mainly with preventing unauthorized employment, facilitating expulsion and readmission, and combating trafficking in persons. These measures are discussed in greater detail in Section 3 below. 2.3.  Impact of the Amsterdam Treaty The EU finally acquired competence over asylum and immigration, including irregular migration, when these matters were transferred to the then ‘Community pillar’ (Title IV EC) by virtue of the Treaty of Amsterdam, which was adopted in June 1997 and which entered into force on 1 May 1999.23 The aim of Title IV EC, entitled ‘Visas, Asylum, Immigration and other Policies related to Free Movement of Persons’, was to establish progressively ‘an area of freedom, security and justice’,24 although it did not define these terms. It enabled the EU to develop a European asylum and immigration policy by identifying a number of areas, which were to be subject to measures adopted by the Council, mostly within a period of five years. Of relevance to irregular migration were the powers of the Council to adopt measures ‘on the crossing of the external borders of the Member States’, including rules on visas,25 and, more specifically, on ‘illegal immigration and illegal residence, including repatriation of illegal residents’.26   COM (94) 23 final of 23 Feb. 1994, p. 27–28, para. 104. Emphasis added.   For analyses of Title IV EC at the time, see K. Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, CML Rev. 35 (1998), p. 1047–1067; J.D.M. Steenbergen, ‘All the King’s Horses … Probabilities and Possibilities for the Implementation of the New Title IV EC Treaty’, EJML 1 (1999), p. 29–60; and P.J. Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis’, CML Rev. 37 (2000), p. 345–366. 24   Art. 61 of the then EC Treaty. 25   Art. 62(2) of the then EC Treaty. 26   Art. 63(3)(b) of the then EC Treaty. 22 23

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The Amsterdam Treaty also brought the Schengen arrangements into EU competence by incorporating the Schengen agreements and the decisions adopted thereunder (the Schengen acquis) by way of a Protocol.27 As a result of two Council decisions in May 1999, this acquis was defined and allocated to the then EC and EU treaties,28 with most of the immigration provisions,  including those concerning irregular migration, being transferred to Title IV.29 The transfer of asylum and immigration matters to the Community pillar, however, was subject to a number of limitations. Most significantly, opt-outs were secured by three Member States (Denmark, Ireland and the United Kingdom).30 However, the latter two countries retained the possibility of opting in to the adoption of certain measures and to accept measures already adopted. This was a clear example of the concept of ‘flexibility’ in EU reform.31 Another limitation concerned the circumscribed role of EU institutions as compared with the remainder of the then Community pillar. Although the measures adopted under Title IV would have the force of EU law, the jurisdiction of the European Court of Justice was restricted because it was only able to consider preliminary references from the national court or tribunal of final instance rather than any national court or tribunal. Similarly, the role of the Commission in Title IV was circumscribed, since it shared the initiative for proposing measures with Member States for a transitional period of five years. A further limitation concerned the position of the Council, which was required to act unanimously in adopting the measures under Title IV, with the exception of those rules on visas relating to third-country visa lists and a uniform format for visas which were previously already part of the Community pillar. Moreover, the European Parliament was only given a consultative role. These rules relating to the powers of the Court of Justice, unanimous voting in the Council and the limited role of the European Parliament in the decision-making process were to be subject to a review by the Council after

  Protocol No. 2 integrating the Schengen acquis into the framework of the European Union, OJ 1997 C 340/93. 28   See respectively Council Decision 1999/435/EC of 20 May 1999, OJ 1999 L 176/1 and Council Decision 1999/436/EC of 20 May 1999, OJ 1999 L 176/17. 29   See generally E. Wagner, ‘The Integration of Schengen into the Framework of the European Union’, Legal Issues of European Integration 1998/2, p. 1–60. 30   See Protocol No. 3 on the application of certain aspects of Article 14 EC to the United Kingdom and to Ireland, OJ 1997 C 340/97, Protocol No. 4 on the position of the United Kingdom and Ireland, OJ 1997 C 340/99, and Protocol No. 5 on the position of Denmark, OJ 1997 C 340/101. 31   See J. Monar, ‘Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation’, EL Rev. 23 (1998), p. 320–335, at p. 332–335. 27

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a period of five years.32 These restrictions have all since been removed, but the ‘intergovernmental’ legacy of the EU measures on irregular migration adopted in the post-Amsterdam Treaty era is clearly visible. It should be emphasized that not all issues relevant to irregular migration were located in Title IV. Although trafficking in persons constitutes an aspect of irregular migration in its worst form, it remained in the truncated Title VI of the revised Treaty on European Union, which was entitled ‘Provisions on Police and Judicial Cooperation in Criminal Matters’. The objective of this Title was ‘to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia’.33 This objective was to be ‘achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud’.34 Title VI moved away considerably from the largely intergovernmental arrangements of the old third pillar. Two principal features, which brought it closer to the Community pillar, should be highlighted. First, the adoption of Council measures in the areas outlined, including trafficking in persons, could now comprise framework decisions for the purpose of approximation of the laws and regulations of the Member States or any other decisions for any other purpose consistent with the objectives of Title VI, which were clearly specified as binding upon the Member States with the proviso that they did not give rise to direct effect.35 Second, the Court of Justice was provided with limited jurisdiction to give preliminary rulings on the validity and interpretation of the measures adopted.36 However, Member States on deciding whether to accept this jurisdiction could restrict the power of national courts or tribunals to make preliminary references to the court or tribunal of final instance.37

  Art. 67 of the then EC Treaty.   Art. 29 of the then EU Treaty. 34   Ibid. Emphasis added. 35   Arts. 34(2)(b) and (c) of the then EU Treaty respectively. The Council could also adopt common positions and establish Conventions to recommend to Member States for adoption. Arts. 34(2)(a) and (d) EU of the then EU Treaty respectively. 36   Art. 35(1) of the then EU Treaty. 37   Arts. 35(2) and (3) of the then EU Treaty. On the entry into force of the Amsterdam Treaty on 1 May 1999, eleven Member States had made declarations accepting the jurisdiction of the Court of Justice under Title VI and of these only Spain opted for the more restrictive approach. See OJ 1999 C 120/24. 32 33

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2.4.  Marking the Path Ahead: Vienna Action Plan and Tampere Conclusions After the adoption of the Amsterdam Treaty, the EU identified how it intended to implement the provisions on an area of freedom, security and justice in two important policy documents. In December 1998, the JHA Council submitted an Action Plan of the Council and the Commission to the Vienna European Council (commonly known as the Vienna Action Plan) and in October 1999, the European Council adopted Presidency Conclusions at its special summit  on asylum and immigration held in Tampere, Finland.38 This section discusses the principal features of these documents as they relate to irregular migration. Both documents outlined essentially a security-based agenda in respect of irregular migration by emphasizing its prevention and the imposition of sanctions on those who facilitate and support it. However, this approach to irregular migration should also be understood within the context of a more enlightened and integrated European policy on asylum and immigration as articulated in the following Tampere Conclusions: The challenge of the Amsterdam Treaty is now to ensure that freedom, which includes the right to move freely throughout the Union, can be enjoyed in conditions of security and justice accessible to all. … This freedom should not, however, be regarded as the exclusive preserve of the Union’s own citizens. Its very existence acts as a draw to many others world-wide who cannot enjoy the freedom Union citizens take for granted. It would be a contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. This in turn requires the Union to develop common policies on asylum and immigration, while taking into account the need for a consistent control of external borders to stop illegal immigration and to combat those who organize it and commit related international crimes. These common policies must be based on principles which are both clear to our own citizens and also offer guarantees to those who seek protection in or access to the European Union.39

Therefore, in addition to underscoring the importance of preventing irregular migration, these particular conclusions appeared to recognize the need to

  See respectively Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, adopted by the JHA Council on 3 Dec. 1998, OJ 1999 C 19/1 [hereinafter Vienna Action Plan] and Presidency Conclusions, Tampere European Council, 15–16 Oct. 1999, Bulletin EU 10–1999 [hereinafter Tampere Conclusions]. 39   Tampere Conclusions, above note 38, paras. 2–3. 38

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provide protection to migrants in need40 and arguably also to keep open legal or regular immigration channels. The Vienna Action Plan injected a sense of urgency by specifying a number of priority measures to be taken within two years of the entry into force of the Amsterdam Treaty and, consequently, within a shorter time-frame than specified in the Treaty itself. These included the following measures of relevance to irregular migration: the establishment of ‘a coherent EU policy on readmission and return’; and preventing ‘illegal immigration through, inter alia, information campaigns in transit countries, and in the countries of origin’.41 Measures relating to external borders and free movement of persons, including visa policy and the further harmonization of Member States’ laws on carriers’ liability, were also identified in the Action Plan as constituting a priority.42 The overriding prevention dimension in respect of irregular migration was therefore clear with the Action Plan observing that ‘in line with the priority to be given to controlling migration flows, practical proposals for combating illegal immigration more effectively need to be brought forward more swiftly’.43 On the subject of trafficking in persons, the Action Plan proposed that measures in the field of police cooperation should be taken within a period of two years to improve European Police Office (Europol)44 cooperation and, inter alia, to ‘make the fight against illegal immigration networks one of the priorities of operational cooperation …’.45 Within the same time-frame, measures were to be adopted identifying ‘the behaviour in the field of organized crime, terrorism and drug trafficking, for which it is urgent and necessary to adopt measures establishing minimum rules relating to the constituent elements and to penalties …’. ‘Trafficking in human beings’ in so far as it relates to organised crime was identified as one of the offences that are ‘prime candidates for this examination’.46 The Tampere Conclusions were generally less detailed than the Vienna Action Plan. Specific conclusions relating to irregular migration and

  In this regard, see also Vienna Action Plan, above note 38, para. 8.   Ibid., para. 36(c). 42   Ibid., para. 36(d). 43   Ibid., para. 36(c). Emphasis added. Within a five-year period, the Action Plan, ibid., para. 38(c), proposed the taking of measures in the immigration field, inter alia, for the ‘improvement of the possibilities for the removal of persons who have been refused the right to stay through improved EU coordination implementation or readmission clauses and development of European official (Embassy) reports on the situation in countries of origin’. 44   Convention based on Article K.3 of the Treaty on European Union on the Establishment of a European Police Office (Europol Convention), OJ 1995 C 316/2. 45   Vienna Action Plan, above note 38, para. 43(1)(iii). 46   Ibid., para. 46(a). 40 41

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t­ rafficking are located in the section entitled ‘Management of Migration Flows’. The European Council called for ‘the development, in close co-operation with countries of origin and transit, of information campaigns on the actual possibilities of legal immigration, and for the prevention of all forms of trafficking in human beings’.47 The Council was urged to adopt, by the end of 2000, legislation containing severe sanctions for ‘those who engage in trafficking in human beings and economic exploitation of migrants’, which was termed a ‘serious crime’.48 With regard to visa policy, the development of ‘a common active policy on visas and false documents’ was proposed, which was to include ‘closer cooperation between EU consulates in third countries and, where necessary, the establishment of common EU visa issuing offices’.49 Similarly, on border controls, closer co-operation between Member States’ border control services was advocated.50 Finally, on the subject of readmission  agreements, the European Council requested the Council ‘to conclude readmission agreements or to include standard clauses in other agreements between the European Community and relevant third countries or groups of countries’, and to consider also the adoption of ‘rules on internal readmission’.51 2.5.  Irregular Migration and Non-Member States: Enlargement and Mixed Agreements with Third Countries In 2000, the EU stood at the threshold of an unprecedented enlargement, which then involved 13 applicant States.52 Enlargement constituted a significant challenge for preventing irregular migration into the EU’s future expanded territory and therefore the Council indicated to applicant countries the measures that needed to be adopted in the Justice and Home Affairs (JHA) field as part of their preparation for EU membership. These were identified in the accession partnerships and included both short- and medium-term measures in such areas as strengthening external border controls, progressive alignment of visa legislation and practice with that of the EU, and taking action to combat organised crime, including trafficking in persons.53 The Vienna Action   Tampere Conclusions, above note 38, para. 22.   Ibid., para. 23. 49   Ibid., para. 22. 50   Ibid., para. 24. 51   Ibid., para. 27. 52   Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, the Slovak Republic, Slovenia and Turkey. 53   E.g. European Commission, DG Enlargement, Poland: Accession Partnership 1999, p. 6–7 and 10. This document is available from the Commission’s web site at http://ec.europa.eu/ enlargement/archives/pdf/dwn/ap_02_00/ap_pl_99_en.pdf. 47 48

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Plan underlined the special significance of the JHA acquis for the countries applying for EU membership.54 Moreover, the Tampere Conclusions stipulated categorically that ‘as a consequence of the integration of the Schengen acquis into the Union, the candidate countries must accept in full that acquis and further measures building upon it’.55 The EU had also entered into a number of association and cooperation agreements with European and non-European countries on its periphery containing clauses concerned with irregular migration. For example, the EuroMediterranean Association Agreement with Tunisia makes it clear that the non-discrimination provisions relating to employment and social security do not apply to ‘nationals of the Parties residing or working illegally in the territory of their host countries’,56 a position that does not conform with applicable international labour standards and human rights law. The Agreement provides for regular dialogue on social matters and particularly on, inter alia, ‘illegal immigration and the conditions governing the return of individuals who are in breach of the legislation dealing with the right to stay and the right of establishment in their host countries’.57 In a similar vein, the Partnership and Cooperation Agreement with Ukraine obliges the EU-Ukraine Cooperation Council, set up to supervise the implementation of the Agreement, to ‘examine which joint efforts can be made to control illegal immigration taking into account the principle and practice of readmission’.58 3.  Battening Down the Hatches: The EU Acquis on Irregular Migration Examined This part of the article provides an overview of the principal EU measures that have been adopted on irregular migration focusing on the following relevant areas: external border controls and visa policy; penalties for unauthorized entry and the detention of migrants in an irregular situation; sanctions against carriers, employers and traffickers; and expulsion and readmission.59   Vienna Action Plan, above note 38, para. 21.   Tampere Conclusions, above note 38, para. 25. See also Hailbronner, above note 23, p. 1067. 56   OJ 1998 L 132/14, Art. 66 with reference to Arts. 64 and 65. 57   Ibid., Art. 69(3)(c). 58   OJ 1998 L 49/3, Art. 29. 59   Another area clearly of relevance to all the areas discussed below is cooperation among Member States regarding exchanges of information on irregular migration, which in 2000 was coordinated by the Centre for Information, Discussion and Exchange on the Crossing of Borders and Immigration (CIREFI). See also JHA Conclusions of 30 Nov. 1994 on the organization and development of CIREFI, OJ 1996 C 274/50. The establishment of CIREFI was 54 55

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As noted in the Introduction, this section focuses on the earlier measures given that this article was originally published in 2000, although a brief paragraph in each sub-section updates the reader on the subsequent and most recent developments. The purpose of this analysis is to demonstrate that the driving force behind implementation of an EU law and policy on this subject has been and continues to be security-based with minimal attention paid to the protection of important rights in the context of a more comprehensive approach.60 Where appropriate, references are also made to the European Convention on Human Rights (ECHR),61 which is clearly important given that fundamental rights as guaranteed in the ECHR are considered to constitute general principles of EU law.62 3.1.  Preventing Irregular Migration: External Border Controls and a Common Visa Policy As noted in the Introduction, a right of entry for non-nationals generally and irregular migrants in particular cannot be supported under international law,

criticized for failing to adopt a common understanding of who is a lawful migrant or a migrant in an irregular situation in individual Member States, without which it is difficult to arrive at accurate statistics relating to irregular migration, and for the limited access to its pool of information, which was restricted to officials. See Developing EU Immigration and Asylum Policies, above note 16, pp. 213–217, 383. A subsequent development was the creation within the framework of CIREFI cooperation of an early warning system for the transmission of information on illegal immigration and facilitator networks (JHA Council Resolution of 27 May 1999). See now Regulation (EC) No 9862/2007 of the European Parliament and the Council of 11 July 2007 on Community statistics on migration and international protection and repealing Council Regulation (EEC) No 311/76 on the compilation of statistics on foreign workers, OJ 2007 L 199/3, which in Article 5 (statistics on the prevention of illegal entry and stay) obliges Member States to provide the Commission (Eurostat) with statistics on ‘(a) third-country nationals refused entry to the Member State’s territory at the external border; and (b) third-country nationals found to be illegally present in the Member State’s territory under national laws relating to immigration’. 60  Already in 2000, two prominent NGOs involved in migration issues, the Londonbased Immigration Law Practitioners’ Association (ILPA) and the Brussels-based Migration Policy Group (MPG), called for a rights-based foundation to the whole of EU policy on immigration and asylum. See S. Peers, The Amsterdam Proposals: The ILPA/MPG Proposed Directives on Immigration and Asylum, ILPA/MPG 2000 [hereinafter ILPA/MPG Proposed Directives]. 61  European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (4 Nov. 1950, ETS No. 5 (as amended); ratified by 47 States parties). All EU Member States are Member States of the Council of Europe and have ratified the ECHR. 62   Art. 6(2) of the then EU Treaty; see now Art. 6(3) EU.

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unless they are also in need of international protection. However, this does not mean that EU Member States are free to take all conceivable measures to keep persons out of their territory as such action may infringe important human rights and rule of law principles.63 Moreover, it is questionable whether such a purely preventive approach is a realistic goal in practice without concomitant positive measures, such as permitting some migrants in an irregular situation to stay in the country for humanitarian, economic and other reasons and adopting a legal immigration policy, questions pursued towards the end of this article. Indeed, migration analysts have pointed out that the adoption of more restrictive national controls on entry to the territory cannot avert irregular migration when powerful push factors in countries of origin and pull factors in destination countries converge.64 Despite these misgivings, a restrictive regime can be identified in the EU with the tightening of external border controls and the adoption of a strict common visa policy. Rules on the crossing of external borders and visas had been developing for some time, both within the EU and the Schengen system, with a view to securing the economic objective of the internal market, defined now in Article 26 TFEU as comprising ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. Schengen rules on external borders and visa policy had developed far more speedily, with the result that significant harmonisation in this area had been achieved by the time of the Amsterdam Treaty’s entry into force.65 These rules were found in the SIA (Title II, Chapters 2 and 3 respectively) as well as in implementing measures of the Schengen Executive Committee, most of which were given a legal base in Articles 62(2)(a) and 62(2)(b) of the then EC Treaty, as amended by the Amsterdam Treaty. These provisions related respectively to ‘standards and procedures to be followed by Member States in carrying out checks on persons at [external] borders’ and ‘rules on visas for intended stays of no more than three months’. Measures on carrying out checks at external borders were already covered in depth in the Schengen

  See Steenbergen, above note 23, p. 31 and 60 and ILPA/MPG Proposed Directives, above note 60, p. 162–163. It is also argued, ibid., p. 163, that a rights-based approach in this area ensures legal certainty. 64   B. Ghosh, Huddled Masses and Uncertain Shores: Insights into Irregular Migration, The Hague: Martinus Nijhoff 1998, p. 146, 182–183. 65   For an overview of the position as regards visa policy at the time, see the Commission Staff Working Paper on Visa Policy consequent upon the Treaty of Amsterdam and the Integration of the Schengen Acquis in the EU, SEC (1999) 1213 of 16 July 1999 [hereinafter Visa Policy]. 63

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Common Manual on the crossing of the external border.66 With regard to visa policy, a non-exhaustive list of measures was provided:   i) the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;   ii) the procedures and conditions for issuing visas by Member States; iii) a uniform format for visas;  iv) rules on a uniform visa.

Rules on the third-country visa list and a uniform format for visas were adopted in the form of Council regulations under former Article 100c of the EC Treaty on visas, which were the only items of immigration policy transferred to the then Community competence by the Maastricht Treaty.67 The former Regulation provided in an Annex for a common ‘negative’ list of 101 third countries whose nationals must be in possession of visas when crossing EU external borders, although Member States could require visas from nationals of countries not on the list.68 This Regulation was the subject of a Commission proposal issued in 2000 under Title IV EC as Article 62(2)(b)(i) also required the creation of a ‘positive’ list of countries whose nationals are exempt from the visa requirement. The proposal integrated the former Community approach with Schengen measures and fully harmonised the visa rules applicable to third-country nationals.69 However, in doing so, it amended the negative list, by increasing the number of countries whose nationals required entry visas from 101 to 134 to conform to the longer Schengen list.70

  Executive Committee Decision SCH/Com-ex (1999) 13 of 28 April 1999 on the definitive versions of the Common Manual and the Common Consular Instructions, Appendix 2. See also Kuijper, above note 23, p. 357. 67  See respectively Council Regulation 2317/95/EC of 25 Sept. 1995, OJ 1995 L 234/1 and Council Regulation 1685/95/EC of 29 May 1995, OJ 1995 L 164/1. The former measure was replaced by a new Regulation in March 1999 after the Court of Justice had ruled that it had been adopted on the basis of an invalid procedure because of a failure to re-consult the European Parliament. See Council Regulation 574/1999/EC of 12 March 1999, OJ 1999 L 72/2 and Case C-392/95, Parliament v. Council [1997] ECR I-3213. 68   Ibid., Art. 2(1). For a ‘grey list’ of such countries, see OJ 1997 C 180/18. 69   Proposal for a Council Regulation listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, COM (2000) 27 final of 26 Jan. 2000, OJ 2000 C 177/E66. 70   The Commission proposed also an increase of the Schengen positive list of 44 countries to 48 countries whose nationals would be exempt from the visa requirement, with the result that there would no longer be a ‘grey list’ once the proposal was adopted. The four countries added to the proposed positive list were Bulgaria, Romania and Hong Kong SAR (Special Administrative Region, China) and Macao SAR. Ibid., p. 10. 66

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Not surprisingly perhaps, all the then refugee-producing countries were placed on this negative list. The latter Regulation provided for a uniform format for visas for entry into the EU and listed in an Annex the detailed technical and security specifications to be met. It applied to visas issued for intended stays of no more than three months and to transit through the territory of a Member State or several Member States. Rules on ‘the procedures and conditions for issuing visas by Member States’ applied to the substantive criteria that have to be met for obtaining a visa, which the Vienna Action Plan identified as including ‘resources, guarantees of repatriation or accident and health cover’.71 Detailed rules in this area were in existence in the form of the Schengen Common Consular Instructions.72 Rules on a uniform visa referred to a common visa, which is uniformly valid and recognised in all Member States.73 Irregular migration continues to play an important role in the development and implementation of the EU uniform visa policy in respect of visas issued for a period of up to three months. Since its adoption in 2001, the Regulation establishing the negative and positive visa lists74 has been amended several times. While a number of countries have been transferred to the positive list, most notably EU accession countries such as Romania and, more recently,  the Western Balkan countries, others (e.g. Bolivia, Ecuador) have been placed on the negative list because of concerns relating to irregular migration. Concerning the conditions for issuing a uniform visa, consolidation and transformation of the Schengen Common Consular Instructions and related measures into the 2009 EU Visa Code Regulation,75 which was adopted by the Council of Ministers and European Parliament after the extension of the ordinary EU co-decision procedure to asylum and migration measures, has resulted in a number of improvements, most notably the introduction of clearer rules relating to refusal of a visa; the application of a strong obligation on consular staff to respect human dignity and the

  Vienna Action Plan, above note 38, para. 36(d)(i).   See SCH/Com-ex (1999) 13, above note 66, Appendix 1. In this regard, see also JHA Council Recommendation of 4 March 1996 on common practices in respect of local consular cooperation on the issue of visas, OJ 1996 C 80/1, adopted under former third pillar cooperation. 73  See Visa Policy, above note 65, p. 9 (note 11) and Kuijper, above note 23, p. 358. See also Art. 10(1) SIA. 74   Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ 2001 L 81/1 (as amended). 75   Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas, OJ 2009 L 243/1. 71 72

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principle of non-discrimination; and an explicit right to appeal a negative decision.76 There were a number of serious human rights and rule of law deficiencies in the then EU acquis on external border controls and visa policy. It is beyond the scope of this article to provide a detailed examination, but one example relating specifically to the impact of the existing rules on migrants in an irregular situation is highlighted below. It was strongly arguable that former SIA rules determining who can be refused entry at an external border infringed rule of law standards since they permitted too much administrative discretion on the part of national authorities, were disproportionate in their effects on the individual and did not provide for adequate opportunities to challenge a negative decision. All these infringements could be traced in relation to the impact of the Schengen provisions on those migrants who had been apprehended in the past for unauthorised entry into an EU Member State. Article 5 SIA, which was given a legal basis in Article 62(2)(a) EC, permitted contracting parties to grant entry to aliens (an ‘alien’ was defined in Article 1 SIA as a non-EU national) for visits for up to three months provided that certain conditions were met. In addition to conditions concerning the need to possess relevant documentation, including a valid visa if required, and to provide evidence of ‘sufficient means of support’ for the visit, the alien must not have ‘been reported as a person not to be permitted entry’ or not considered ‘a threat to the public policy, national security or the international relations of any of the Contracting parties’.77 The terms in Article 5 SIA were partly elaborated in Article 96 SIA outlining the circumstances that might lead to a report prohibiting entry. Article 96 SIA was located in Title IV SIA on the Schengen Information System (SIS),78 which was allocated by default to the revised third pillar of the then Treaty on European Union because of a lack of agreement among Member States on moving parts of the SIS to the then Community pillar. Article 96 SIA stipulated that information in the SIS was to be ‘included on the basis of a national report resulting from decisions taken, in compliance with the rules of procedure laid down by national legislation, by the administrative authorities or courts responsible’. Such decisions could be premised ‘on a threat to public order or national security and safety which the presence of an alien

  Ibid., Arts. 32, 39 and 47(h) respectively.   Art. 5(1)(a)-(e) SIA. Art. 15 SIA added that visas (if required) would only be issued if these criteria were satisfied. 78   The SIS consists of a national section in each participating State and a central technical support function based in Strasbourg, France. 76 77

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in national territory may pose’.79 Decisions giving rise to a report might also be grounded on the fact that the alien had been subject to expulsion measures,  which were still in force, or on residence ‘based on non-compliance with national legislation on the entry or residence of aliens’.80 The discretion permitting contracting parties to signal a report on the SIS was thus very broad. Moreover, the application of different rules in different Member States was likely to lead to inequality of treatment of migrants in an irregular situation and have a disproportionate impact on certain individuals. For example, one State might decide to report all migrants found to have breached its external frontier controls without authorisation, while another State might only do so if the infraction was particularly serious or was a repeated violation. All such persons reported would then normally have had to be refused entry at the external border of another State party, even if they presented themselves at that border in the future with the correct documentation.81 The scope for challenging a decision prohibiting entry was also limited. Although the Convention enabled a person to bring an action before the court or competent national authority ‘to correct, delete or provide information or obtain compensation in connection with a report concerning him [or her]’,82 there seemed to be no possibility of discovering in advance that a negative report had been entered. In this regard, it was argued that the individual, who had been refused a visa or admission based on an entry in the SIS, ‘should be entitled to written notification of this fact, including the name and address of the authority for review of that entry, together with a standard form request for deletion of the entry’.83 Indeed, the French Conseil d’Etat ruled in June 1999, in respect of third-country nationals refused visitors’ visas by French consulates on the basis of an entry in the SIS by another Schengen State, that French authorities, when refusing a visa, were obliged to inform applicants of the Schengen State which requested their registration in the SIS so that they could challenge the entry before the authorities of that State.84   Art. 96(1) and (2) SIA respectively.   Art. 96(3) SIA. 81   Art. 5(2) SIA allowed a contracting party to derogate from the conditions in Art. 5(1) SIA ‘on humanitarian grounds or in the national interest or because of international obligations’, but in such cases, entry was restricted to the territory of the contracting party concerned, which was also under an obligation to inform the other contracting parties. 82   Art. 111(1) SIA. 83   See Academic Group on Immigration – Tampere (AGIT), Efficient, Effective and Encompassing Approaches to a European Immigration and Asylum Policy (9 June 1999) (mimeo), p. 18, para. 16(c). 84  See Migration News Sheet No. 197/99 (Aug. 1999), p. 2. 79 80

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While the Regulation on the Schengen Borders Code,85 adopted in 2006, has given rise to a number of improvements, not least in terms of due process and the obligation of border guards to respect human dignity and the principle of non-discrimination when conducting border checks,86 the principal concern highlighted above has not been subject to any radical revision. While an exhaustive set of entry conditions has been introduced, breach of which must result in refusal, it is still possible to refuse entry on the basis of conditions relating to an SIS alert – even though the authorities of the Member State concerned would not necessarily have issued an alert in the same circumstances – or if the person concerned is ‘considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States’.87 3.2.  Penalising Undocumented Migrants on Entry Many States consider it entirely reasonable to impose criminal penalties, including imprisonment, on persons who cross their borders without authorisation. This approach was endorsed by the then EU acquis on irregular migration with the incorporation of Article 3(2) SIA, by which States undertook ‘to introduce penalties for the unauthorised crossing of external borders at places other than crossing points or at times other than the fixed opening hours’. This aspect of the Schengen acquis was allocated to former Article 62(2)(a) EC with the proviso that ‘the nature, modalities and severity of the penalty provisions required … [was] a matter for the Member States’.88 It was understood, therefore, that this provision did not require harmonisation of sanctions.89 The JHA Council Recommendation of 22 December 1995 on harmonising means of combating illegal immigration and illegal employment and improving the relevant means of control also proposed that Member States should impose penalties, including criminal penalties, on ‘foreign nationals who have deliberately brought about their illegal position, particularly by refusing to supply travel documents’.90

  Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ 2006 L 105/1. 86   Ibid., Art. 6 87   Ibid., Arts. 5(1)(d) and (e), and Art. 14. Emphasis added. 88   Council Decision 1999/436/EC, above note 28, Annex A, p. 19. 89   Wagner, above note 29, p. 20. 90   OJ 1996 C 5/1, para. 10, third indent. 85

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Although the question of imposing penalties on migrants for unauthorised entry is not explicitly addressed in other international instruments concerned  with irregular migration, the ILO Committee of Experts on the Application of Conventions and Recommendations has doubted the validity of imposing such penalties with reference to Article 6(1) of Convention No. 143, which reads: Provision shall be made under national laws or regulations for the effective detection of the illegal employment of migrant workers and for the definition and the application of administrative, civil and penal sanctions, which include imprisonment in their range, in respect of the illegal employment of migrant workers, in respect of the organisation of movements of migrants for employment …, and in respect of knowing assistance to such movements, whether for profit or otherwise.

In a 1990 General Survey on the ILO instruments concerning migrant workers, the Committee observed that this provision, as well as others in Part I of Convention No. 143 aimed at combating irregular migration ‘are primarily targeted at the demand for clandestine labour rather than supply’ and that sanctions against migrant workers in an irregular situation are ‘contrary to the spirit of the [ILO] instruments’.91 In keeping with the ILO approach, the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW),92 underscores the necessity of imposing penalties on employers and traffickers but does not expressly sanction penalising migrants in an irregular situation themselves.93   International Labour Conference, 87th Session, Geneva, June 1999, Report III (1B), Migrant Workers: General Survey on the reports on the Migration for Employment Convention (Revised) (No. 97), and Recommendation (Revised) (No. 86), 1949, and the Migrant Workers (Supplementary Provisions) Convention (No. 143), and Recommendation (No. 151), 1975, para. 338. This document is available from the ILO’s website at http://www.ilo.org/public/english/ standards/relm/ilc/ilc87/r3–1b.htm. 92   ICRMW, UN GA Res. 45/158 of 18 Dec. 1990; entry into force 1 July 2003. For a detailed analysis of the Convention’s provisions, see R. Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, Oxford: Clarendon Press 1997, p. 137–204. To date, the Convention has received relatively limited support from the international community of States in terms of ratifications. Forty-four States had ratified the Convention as of 6 March 2011, including three Council of Europe Member States (Azerbaijan, Bosnia and Herzegovina and Turkey) but no EU Member State. 93   See ICRMW, ibid., Arts. 68(1)(b) and (c) and 68(2) respectively. However, the Convention appears to implicitly accept that migrant workers may be detained for infringing national immigration laws by providing for the following safeguard in Art. 17(3): ‘Any migrant worker or a member of his or her family who is detained in a State of transit or in a State of employment for violation of provisions relating to migration, shall be held, so far as practicable, separately from convicted persons or persons detained pending trial’. Emphasis added. 91

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This view of the ILO Committee of Experts found support to a great extent in a March 2000 resolution of the European Parliament: ‘[S]ince immigration is a complex phenomenon involving political, historical, social and economic factors, illegal immigrants cannot be considered to be criminals in the same way as persons guilty of serious offences involving organised crime’.94 Moreover, the application of criminal sanctions on migrants in an irregular situation hardly makes sense from an economic standpoint given that removal is considerably more cost-effective than imprisonment. 3.3.  Detaining Migrants in an Irregular Situation In 2000, there were no legally binding EU measures explicitly advocating the detention of migrants in an irregular situation, but, as noted above in Section 3.2, Article 3(2) SIA authorised contracting States ‘to introduce penalties for the unauthorised crossing of external borders’, the nature and severity  of which were left to their discretion. Although such measures include imprisonment, in practice the detention of migrants in an irregular situation is more likely to occur after they have been apprehended with a view to their expulsion. The 1992 Recommendation of immigration ministers regarding practices followed by Member States on expulsion supported a power to detain those persons liable to expulsion, but observed that ‘any restriction of liberty should be limited to the period necessary to effect expulsion’, accommodation in custody should be separate from that used by prisoners, and those in custody should have reasonable access to legal advisers and others.95 A subsequent JHA Council Recommendation adopted in December 1995 added that ‘the period of detention should be used in particular to obtain the necessary travel documents for expelling foreign nationals who have no documents’.96 Clearly, this is an area where the adoption of EU rules is subject to human rights guarantees protecting the right to liberty and security of the person, particularly Article 5 ECHR. The JHA measures on detention with a view to

  European Parliament Resolution of 30 March 2000 on asylum-seekers and migrants – action plans for countries of origin or transit, point 22, available at http://www.europarl.europa.eu/ sides/getDoc.do?pubRef=-//EP//TEXT+TA+P5-TA-2000-0132+0+DOC+XML+V0// EN&language=MT. 95   Doc. WGI 1266, paras. 1–4 respectively. This recommendation was not published in the Official Journal, although the text together with a commentary can be found in Developing EU Immigration and Asylum Policies, above note 16, pp. 219–238. 96   JHA Council Recommendation on harmonizing means of combating illegal immigration and illegal employment and improving the relevant means of control, above note 90, para. 10. 94

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expulsion, referred to above, appeared broadly to conform with Article 5(1)(f) ECHR, which operates as an exception to the right to liberty and security of person, by permitting, in accordance with a procedure prescribed by law, ‘the lawful arrest or detention of a person to prevent [his/her] effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’. The detention must therefore be in accordance with a procedure regulated by national law, while the term ‘lawful’ has been interpreted by the European Court of Human Rights to mean that the detention must be lawful under the applicable domestic law, in both a substantive and procedural sense, and, moreover, not ‘arbitrary’.97 The Court has also observed that in determining lawfulness, it is legitimate not just to refer back to the domestic law but also to assess ‘the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention’.98 Furthermore, in accordance with Article 5(4) ECHR, the detainee also has a right to have the lawfulness of his or her detention reviewed speedily by the court. Detention under Article 5(1)(f) ECHR with the objective of pursuing a purpose other than deportation or extradition is not permitted.99 However, no expulsion order needs to be in force, provided that proceedings to effect the expulsion have started and are being pursued by the authorities with due or requisite diligence.100 Although the maximum length of detention is not specified in Article 5(1)(f) ECHR, it is clear that the period of detention should not exceed a reasonable time as otherwise it risks being arbitrary. What is reasonable will depend on the circumstances of each case, taking into account the conduct of the authorities as well as the applicant.101 Clearly, however, a period of detention, no matter how short, would not be permissible if the authorities make little or no attempt to remove a migrant in an irregular situation from the country concerned.   Eur. Court HR, Bozano v. France, judgment of 18 Dec. 1986, EHRR 9 (1987), 297; Saadi v. United Kingdom, judgment of 29 Jan. 2008, para. 67.  98   Eur. Court HR, Amuur v. France, judgment of 25 June 1996, EHRR 22 (1996), 533, para. 50.  99   J. L. Murdoch, Article 5 of the European Convention on Human Rights. The Protection of Liberty and Security of Person, Human Rights Files No. 12 (1994), p. 31, para. 36; P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed., The Hague: Kluwer 1998, p. 364. 100   Eur. Court HR, Chahal v. UK, judgment of 15 Nov. 1996, EHRR 23 (1996), 413, para. 113; Eur, Comm. HR, Application 7317/75, Lynas v. Switzerland (1977) 6 D & R 141. 101   See respectively Eur. Comm. HR, Application 9706/82, X v. Germany (1983) 5 EHRR 512 and Eur. Court HR, Kolompar v. Belgium, judgment of 24 Sept. 1992, (1993) 16 EHRR 197 where periods of detention of 22 months and almost three years were found to be permissible.  97

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Detention of migrants in irregular status is now clearly in the sphere of EU legal competence as a result of the adoption of the Returns Directive,102 most of which had to be transposed by EU Member States by 24 December 2010. The Directive sets out common standards and procedures to be applied  in Member States for returning unlawfully staying third-country nationals. While detention in the course of this process is essentially seen as a fall-back position in that less coercive measures cannot be applied effectively  in the particular case,103 the grounds for exercising this power are broadly drawn,104 and migrants can be detained for a maximum of six months, which can be extended for a further 12 months, again on the basis of rather generous  reasons.105 Moreover, there is no absolute prohibition in the Directive on detention of migrant women and children, who can be detained as a measure of last resort and for the shortest appropriate period of time.106 However, the Directive does introduce a number of procedural and substantive safeguards in the expulsion process, including in respect of detention, and a number of these have already been discussed in an important judgment of the Court of Justice.107 Clearly, Article 5 ECHR, as buttressed by Article 6 on the right to security and liberty of person in the now legally binding EU Charter of Fundamental Rights,108 will continue to apply to the actions of EU Member States. 3.4.  Apprehending and Penalising Those Who Assist Migrants in an Irregular Situation: Sanctions against Carriers, Employers, Migrant Smugglers and Traffickers in Persons EU Member States have also attempted to deter irregular migration by imposing penalties on those who facilitate this phenomenon, such as carriers, employers, migrant smugglers and traffickers in persons. The introduction of carrier liabilities and employer sanctions was criticized in 1999 as ‘part of a   Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ 2008 L 348/98. 103   Ibid., Art. 15(1). 104   Ibid., Art. 15(1)(a) and (b) – in particular, there is a risk of absconding or the third-country national concerned avoids or hampers the preparation for return or the removal process. 105   Ibid., Arts. 15(5) and (6) respectively. These grounds are ‘a lack of cooperation by the thirdcountry national concerned’ or ‘delays in obtaining the necessary documentation from third countries’. 106   Ibid., Art. 17(1). 107   Case C-357/09/PPU, Kadzoev, judgment of 30 Nov. 2009. 108   Charter of Fundamental Rights of the European Union, OJ 2010 C 83/389. 102

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tendency to privatise immigration control’,109 an observation that remains valid today. With regard to employer sanctions in particular, it has also been contended that they may lead to discrimination on the basis of race and ethnicity by the employer and, if such sanctions are to be imposed, they should be aimed at employers of all persons undertaking unauthorized work, most of whom indeed are nationals rather than migrants in an irregular situation.110 3.4.1. Carriers Article 26(1) SIA obliged contracting parties to incorporate rules in their national legislation requiring air, sea or land carriers to assume responsibility for those non-nationals refused entry into the territory of a contracting State and to return them to a third country from which they were transported or which issued the travel document on which non-nationals travelled or to any other third country to which they are entitled to enter. Carriers were also required to ensure that the non-national is in possession of all necessary travel documents required for entry into the territory of a contracting party. Moreover, under Article 26(2) SIA, contracting parties undertook, subject to the Geneva Convention, and in accordance with their constitutional law, ‘to impose penalties on carriers who transport aliens who do not possess the necessary travel documents by air or sea from a Third State to their territories’. A brief consideration of the legal position in a number of EU Member States at the time revealed that carriers were not only required to assume responsibility for migrants in an irregular situation, but also faced stiff penalties for every such individual transported.111 Article 26 SIA was allocated to Article 63(3) EC and contained the same proviso as that attached to the allocation of Article 3(2) SIA concerning the imposition of penalties for unauthorized crossing of external borders, namely that ‘the determination of the nature, modalities and severity of the penalty provisions required under this Article is a matter for the Member States’.112 This indicated that although a consensus existed on the principle to take action on carrier sanctions, Member States appeared not to be prepared to harmonise their laws further,113 which supported a continuing trend in respect

  See European Council on Refugees and Exiles (ECRE), European Network Against Racism (ENAR) and Migration Policy Group (MPG), Guarding Standards – Shaping the Agenda (Brussels: ECRE, ENAR, MPG, April 1999), p. 21. 110   Ibid. 111   Ghosh, above note 64, p. 99 (Table 4.1) (1995–96 figures). 112   Council Decision 1999/436/EC, above note 28, Annex A, p. 20. 113   Wagner, above note 29, 21. 109

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of this area.114 Nonetheless, the Vienna Action Plan identified further harmonisation of Member States’ laws on carriers’ liability as a priority.115 The provisions in Article 26 have now been supplemented by a Directive on Carriers’ liability,116 which, inter alia, requires Member States to take the necessary measures to ensure that the penalties applicable to carriers under Article 26 are dissuasive, effective and proportionate, and to set minimum or maximum amounts for these penalties which are specified in the Directive.117 3.4.2. Employers Another means of deterring irregular migration is by imposing penalties on employers of migrants in an irregular situation. By virtue of Article 27(1) SIA, contracting parties undertook to ‘impose appropriate penalties on any person who, for the purpose of gain, assists or tries to assist an alien to enter or reside within the territory of one of the Contracting Parties contrary to the laws of that Contracting Party on the entry and residence of aliens’. This broadly worded obligation encompassed the imposition of sanctions on employers, traffickers, and others involved in assisting the unauthorised entry or residence of migrants. Article 27(1) SIA was allocated to Article 63(3) EC and was also subject to the same proviso as that applicable to Articles 3(2) and 26(1) SIA giving contracting States greater freedom of action to determine the nature, modalities and severity of the penalties involved.118 A number of ‘soft law’ measures were adopted under both pre-third pillar and third pillar cooperation among EU Member States, which devoted more detailed attention to the imposition of sanctions on those who assist migrants in irregular status, including employers. The 1992 Recommendation of ministers responsible for immigration regarding practices followed by Member States on expulsion proposed that Insofar as legislation does not already exist, Member States should consider the introduction of laws which would provide for the prosecution of people who

  See A. Cruz, Shifting Responsibility: Carriers’ Liability in the Member States of the European Union, London: Trentham 1995, p. 6: ‘Although it is evident that carrier sanctions relate not only to policies of controls of the EU external borders but also to plans for the suppression of internal borders, there has been no co-ordination whatsoever, either among the … Member States of the Union or the … Member States of the Schengen Group, to approximate their respective policies and practices’. 115   Vienna Action Plan, above note 38, para. 36(d). 116   Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985, OJ 2001 L 187/45. 117   Ibid., Art. 4(1). 118   Council Decision 1999/436/EC, above note 28, Annex A, p. 20. 114

152  Ryszard Cholewinski knowingly facilitate or attempt to facilitate the entry or transit of illegal entrants, and, subject to appropriate safeguards, of those who knowingly harbour those who have entered or remained unlawfully. It will be particularly appropriate to provide for the prosecution of those who commit such acts for reward or in an organised way. It is also recommended that appropriate measures should be taken to combat the employment of those known to have entered or remained in breach of the immigration or aliens provisions or who are not authorised to work under immigration/aliens or related provisions.119

The recommendation also considered other punitive measures for those who facilitate, harbour or employ migrants in an irregular situation, such as their expulsion from the country if they are non-nationals, and in the case of those who facilitate entry, the confiscation of their modes of transport.120 More specific recommendations were adopted in the context of inter­ governmental cooperation under the former third pillar. The JHA Council Recommendation of 22 December 1995 on harmonising means of combating illegal immigration and illegal employment proposed that employers should be subject to appropriate penalties for employing a foreign national without authorisation.121 This approach was supported by JHA Council Recom­ mendation of 27 September 1996 on combating the illegal employment of third-country nationals,122 which provided for the ‘principle’ that thirdcountry nationals (with the exception of those covered by the then Community law) wishing to work in a Member State should possess residence and work authorisations.123 Employment of third-country nationals without authorisation should give rise to the imposition of criminal and/or administrative penalties in national laws aimed at employers of such workers and those who encourage, facilitate or promote unauthorised employment.124 In 2009, the Council and European Parliament adopted a Directive on employer sanctions,125 which lays down minimum standards and measures that have to be applied in respect of employers who hire irregularly staying third-country nationals. The Directive has to be transposed by Member States by 29 July 2011 and provides for effective, proportionate and dissuasive financial sanctions; other measures such as exclusion from entitlements to   Above note 95, Pt V, para. 1.   Ibid., Pt V, para. 2 and Pt VI, para. 1. 121   Above note 90, para. 6. 122   OJ 1996 C 304/1. 123   Ibid., Pt II, para. 1. 124   Ibid., Pt II, paras. 1–2. 125   Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals, OJ 2009 L 168/24. 119 120

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some or all public benefits for a period of up to five years, aid and subsidies; and criminal penalties in the case of intentional, persistent or more serious infringements.126 While the concerns raised in respect of all sanctions imposed in the field of irregular migration – and employer sanctions in particular – continue to be valid in respect of this new EU measure, the Directive contains an important provision safeguarding the rights of migrants in an irregular situation, namely the obligation of employers to pay back outstanding remuneration to the third-country national concerned,127 a clause that is also found in ILO Convention No. 143.128 3.4.3.  Migrant Smugglers and Traffickers in Persons (i) Definitional Issues The Annex to the Convention establishing Europol129 distinguishes conceptually between ‘illegal immigrant smuggling’ and ‘trade/trafficking in human beings’: ‘illegal immigrant smuggling’ means activities intended deliberately to facilitate, for financial gain, the entry into, residence or employment in the territory of the Member States of the European Union, contrary to the rules and conditions applicable in the Member States. ‘traffic in human beings’ means subjection of a person to the real and illegal sway of other persons by using violence or menaces or by abuse of authority or intrigue, especially with a view to the exploitation of prostitution, forms of sexual  exploitation and assault of minors or trade in abandoned children. These forms of exploitation also include the production, sale or distribution of childpornography material.130

Similar definitions are used in the 2000 UN Convention against Transnational Organised Crime in its two supplementary protocols relating to irregular migration: a Protocol against the Smuggling of Migrants by Land, Air and Sea; and a Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.131 The Protocol against the Smuggling of Migrants defines ‘smuggling of migrants’ as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal   Ibid., Arts. 5, 7 and 9 respectively.   Ibid., Art. 6(1)(a). 128   Above note 11, Art. 9(1). 129   Above note 44. 130   As amended by Council Decision of 3 Dec. 1998 supplementing the definition of the form of crime of ‘traffic in human beings’ in the Annex to the Europol Convention, OJ 1999 C 26/1. 131   For the texts, see the website of the UN Office for Drugs and Crime (UNODC) at http:// www.unodc.org/unodc/en/treaties/CTOC/index.html. 126 127

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entry of a person into a State Party of which the person is not a national or a permanent resident’.132 ‘Trafficking in persons’ is defined in the latter Protocol as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery. servitude or the removal of organs.133

Although there is a close interrelationship between ‘smuggling’ and ‘trafficking’,134 these definitions imply that traffic in human beings should constitute the more serious criminal offence. This is because of the elements of coercion, deception or violence in trafficking, which give rise to exploitation of migrants, and the particular vulnerability of certain affected groups of persons such as women and children. Unfortunately, this important distinction is not always adhered to in practice with the result that the term ‘trafficking’ is often used rather loosely to include migrant smuggling. (ii) Combating Migrant Smuggling and Trafficking in Persons Under Article 63(3)(b) EC, measures on immigration policy in respect of ‘illegal migration and illegal residence’ clearly encompassed the adoption of measures to combat migrant smuggling. Although Article 27(1) SIA, which imposed penalties on those who assist migrants in an irregular situation and which was allocated to Article 63(3) EC, did not refer expressly to migrant smuggling, it was broad enough, as noted in Section 3.4.2 above, to encompass most forms of this practice. In pursuit of the objective ‘to provide citizens with a high level of safety within an area of freedom, security and justice’, Title VI of the then EU Treaty referred to trafficking in persons as an important matter in the context of closer cooperation between police, judicial and other competent Member   Protocol against the Smuggling of Migrants by Land, Air and Sea, Art. 3(a).   Protocol to Prevent, Suppress and Punish Trafficking in Persons, Art. 3(a). 134   See UN General Assembly, Ad Hoc Committee on the Elaboration of a Convention against Transnational Crime, 8th Session, Vienna, 21 Feb. - 3 March 2000, Note by the Office of the UNHCR, UNICEF and IOM on the draft protocols concerning migrant smuggling and trafficking in persons, UN Doc. A/AC.254/27 at 1, para. 2. For an interesting and critical analysis of the various definitional approaches, see J. Chuang, ‘Redirecting the Debate over Trafficking in Women: Definitions, Paradigms, and Concerns’, Harvard Human Rights Journal 11 (1998), p. 65–107. 132 133

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State authorities in preventing and combating crime, including organised crime, and the approximation of criminal laws in Member States.135 The Tampere Conclusions described trafficking as a ‘serious crime’ and invited the Council to adopt legislation by the end of 2000, on the basis of a Commission proposal, imposing severe sanctions against trafficking.136 The Conclusions observed that ‘with regard to national criminal law, efforts to agree on common definitions, incriminations and sanctions should be focused in the first instance on a limited number of sectors of particular relevance, such as … [inter alia] trafficking in human beings, particularly exploitation of women [and] sexual exploitation of children …’.137 It was recognised that effective action against trafficking in persons could not succeed without cooperation of the relevant authorities in EU Member States. Initially, cooperation in this area took place under the former third pillar within the Europol Drugs Unit,138 the mandate of which was extended to ‘act as a non-operation team for the exchange and analysis of information [affecting two or more Member States] in relation to …[inter alia] traffic in human beings’.139 The Unit was established as a precursor to Europol. The Europol Convention entered in force on 1 October 1998, and Europol took up its activities from 1 July 1999.140 Europol’s objective, as defined in Article 2(1) of the Convention, is to improve … the effectiveness and cooperation of the competent authorities in the Member States in preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime where there are factual indications that an organized criminal structure is involved and two or more Member States are affected by the forms of crime in question in such a way as to require a common approach by the Member States owing to the scale, significance and consequences of the offences concerned.

Article 22 of the Europol Convention identifies a number of areas where initial action was necessary to progressively achieve the objective in the   Art. 29 of the then EU Treaty (as amended).   Tampere Conclusions, above note 38, para. 23. The 1996 JHA Council Recommendation on combating the illegal employment of third-country nationals, above note 122, Pt III, para. 3, emphasised also the particularly serious nature of trafficking in labour by specifying that it should constitute a criminal offence incurring criminal and/or administrative penalties. 137   Ibid., para. 48. 138   JHA Council Joint Action of 10 March 1995 concerning the Europol Drugs Unit, OJ 1995 L 62/1. 139   JHA Council Joint Action of 16 Dec. 1996 extending the mandate given to the Europol Drugs Unit, OJ 1996 L 342/4. 140   See Council Communication concerning the taking up of activities of Europol, OJ 1999 C 185/1. 135 136

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preceding paragraph, including action to prevent and combat ‘illegal immigrant smuggling’ and ‘trade/trafficking in human beings’. Under former Article 29 EU, the objective of preventing and combating crime, including trafficking in persons, was to be achieved by, inter alia, ‘closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through … [Europol] …’. The Council was mandated to promote cooperation through Europol, particularly with regard to specific investigative actions, the conduct and coordination of investigations in specific cases by the competent authorities of Member States, and the promotion of liaison arrangements between prosecuting and investigating officials specialising in the fight against organised crime.141 The importance of Europol to combating trafficking in human beings was underlined in the Tampere Conclusions. In inviting the Council to adopt legislation by the end of 2000 imposing severe sanctions against trafficking, the Conclusions also added that ‘Member States, together with Europol, should direct their efforts to detecting and dismantling the criminal networks involved’ in trafficking.142 The Conclusions called for joint investigative teams, as foreseen in the then third pillar, to be set up without delay to investigate cross-border crime, including trafficking in human beings, and recommended that Europol representatives should participate in such teams in a support capacity.143 EU action against trafficking in persons is presently located in a Framework Decision adopted under the former Title VI EC,144 which contains a similar definition of trafficking to that found in the Protocol to Prevent, Suppress and Punish Trafficking in Persons.145 The Commission has proposed to recast this measure as a Directive because of the merger of former Titles IV and VI in the Consolidated Version of the EU Treaty and the Treaty on the Functioning of the EU.146 The Council has also adopted a Directive enabling Member States to grant a residence permit of limited duration to victims of trafficking if they cooperate with the competent authorities in national proceedings against traffickers,147 discussed also in Section 4.1.2 below. As far as action   Art. 30(2)(a)(c) of the then EU Treaty.   Tampere Conclusions, above note 38, para. 23. 143   Ibid., para. 43. 144   Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings, OJ 2002 L 203/1. 145   Ibid., Art. 1. 146   See respectively COM (2010) 95 final of 29 March 2010 and OJ 2010 C 83/1. 147   Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to thirdcountry nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ 2004 L 261/19. 141 142

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against migrant smuggling is concerned, this is encapsulated by a Directive and a Framework Decision – also adopted under the auspices of the Amsterdam Treaty arrangements – defining the facilitation of unauthorised entry, transit and residence, and imposing obligations on Member States to put in place effective, proportionate and dissuasive sanctions, including criminal and administrative fines as well as other measures.148 However, the potentially broad scope of these two measures, and the Directive in particular, is problematic because it could possibly be applied to criminalise the action of civil society organisations providing humanitarian assistance to migrants in an irregular situation if the Member State does not explicitly opt to exclude such assistance from its application.149 3.5.  Removing Migrants in an Irregular Situation: Expulsion and Readmission Article 63(3)(b) of Title IV EC instructed the Council to adopt measures on immigration policy within the area of ‘illegal immigration and illegal residence, including repatriation of illegal residents’. Clearly, this provision enabled measures to be adopted in respect of the expulsion of migrants in irregular status and their readmission to their country of origin or a third state. Indeed, as observed earlier in Section 2.4, both the Vienna Action Plan and the Tampere Conclusions underlined that the adoption of measures on expulsion and readmission constitute priorities for the EU. The Action Plan urged the adoption of ‘a coherent EU policy on readmission and return’150 within two years of the entry into force of the Amsterdam Treaty, while the Tampere Conclusions underscored the importance of readmission policies. Then binding EU law concerning expulsion and readmission was originally found in Article 23 SIA, which was allocated a legal base in Articles 63(3)(b) and 62(3) EC. Article 23(1) SIA established the principle that ‘an alien who does not fulfil or who no longer fulfils the short visit conditions applicable within the territory of a Contracting Party must … leave the territories of the Contracting Parties without delay’. The obligation to expel such persons, who had not left voluntarily or who were assumed would not leave, was found in Article 23(3) SIA. By virtue of Article 23(2) SIA, however, a contracting party,   Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, OJ 2002 L 328/17 and Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, OJ 2002 L 328/1. 149  Council Directive defining the facilitation of unauthorised entry, transit and residence, above note 148, Art. 1(2). 150   Vienna Action Plan, above note 38, para. 36(c)(ii). 148

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which had issued a valid residence permit to the person concerned, had to readmit him or her. Article 23(4) specified that removal could be either to the migrant’s country of origin or to any other State to which he or she might be permitted entry, in particular under readmission agreements concluded by contracting parties. Finally, Article 23(5) SIA clarified that the preceding provisions were without prejudice to the operation of national laws on the right of asylum and the Geneva Convention. 3.5.1. Expulsion Many of the soft law immigration measures adopted under the Maastricht Treaty arrangements were concerned with expulsion and the prevention of unauthorised employment and built on earlier action taken by Community ministers responsible for immigration, particularly Recommendation of 30 November 1992 regarding practices followed by Member States on expulsion. This Recommendation established, as a general rule, that the following categories of persons should be expelled: those found to have entered or remained unlawfully in a Member State; those liable to expulsion on grounds of public policy or national security; or those who had failed definitively in an application for asylum and had no other claim to remain.151 The only exception to this rule was if ‘there are compelling reasons, normally of a humanitarian nature, for allowing them to remain’. Another group of persons liable for expulsion were those who had been ‘working in breach of immigration/aliens or related provisions’.152 The personal scope of the recommendation was criticised for not being sufficiently clear and for failing to specify that some groups of third-country nationals, such as Turkish workers, had more protection against expulsion under EU law than others.153 The Recommendation also contained a number of procedural safeguards for those facing expulsion: (i) such persons should be notified of the reasons for the expulsion decision unless interests of national security dictated otherwise; (ii) consideration should be given to the provision of an interpreter whenever any doubt existed as to their ability to understand the language in which an interview was being conducted; and (iii) they should have a right to be represented and an appropriate means to challenge expulsion decisions.154 Although these procedural safeguards appeared broadly in conformity with international human rights

  Above note 95, Pt. 1, para. 2.   Ibid. 153   Developing EU Immigration and Asylum Policies, above note 16, p. 231 with reference to Art. 14 of the EC-Turkey Association Council Decision 1/80. 154   Above note 95, Pt 1, paras. 5, 6 and 7 respectively. 151 152

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standards,155 the recommendation did not incorporate specific aspects of these standards, or their interpretation, into its text. It merely obliged Member States to ensure that policies and practices on expulsion were fully consistent with their obligations under the Geneva Convention, and that account should be taken of other relevant international instruments, such as the ECHR.156 The 1992 Recommendation was followed by a series of technically oriented measures to facilitate the expulsion process, the aim being to increase cooperation among EU Member States in relation to such matters as transit for expulsion purposes, standardisation of travel documents for those being expelled, procurement of necessary documentation, and exchange of information.157 Measures were also adopted with the aim of ensuring that thirdcountry nationals resident unlawfully or engaged in unauthorised employment could be detected speedily. The JHA Council Recommendation of 22 December 1995 on harmonising means of combating illegal immigration and illegal employment and improving the relevant means of control proposed a series of identity checks to be carried out on suspected migrants in an irregular situation, including checks by central and local public services providing welfare benefits and employers, who were encouraged to liaise with the authorities responsible in particular for issuing residence and work permits.158 A similar, but more general, pre-third pillar proposal159 was criticised on the basis that conducting checks on suspected migrants in an irregular situation   See Art. 13 ICCPR and Art. 1 of Protocol No. 7 to the ECHR, which are applicable to ‘lawfully resident aliens’. It has been argued, however, that these provisions should also apply to those migrants whose legality in the country in question has not yet been determined. See R. Perruchoud and S. Vohra, Identifying Core Rights of Concern to Migrants, IOM Background Paper presented to the Seminar on Human Rights and Migrants, Washington D.C., 23–24 April 1998. Comprehensive procedural safeguards against expulsion, applicable to both regular migrants and those in irregular status, are provided for in Art. 22 of the ICRMW, above note 92. 156   Above note 95, Pt 1, para. 1. 157   EC Ministers responsible for immigration Recommendation of 30 Nov. 1992 concerning transit for the purposes of expulsion, OJ 1996 C 5/5; JHA Council Recommendation of 30 Nov. 1994 concerning the adoption of a standard travel document for the expulsion of third-country foreign nationals, OJ 1996 C 274/18; JHA Council Recommendation of 22 Dec. 1995 on concerted action and cooperation in carrying out expulsion measures, OJ 1996 C 5/3; JHA Council Decision of 26 May 1997 on the exchange of information concerning assistance for the voluntary repatriation of third-country nationals, OJ 1997 L 147/3. 158   Above note 92, paras. 4 and 5. 159   EC Ministers responsible for immigration Recommendation of 25 May 1993 concerning checks on and expulsion of third-country nationals residing or working without authorization, Doc. WGI 1516. This measure was not published in the Official Journal, but the text is reproduced in Developing EU Immigration and Asylum Policies, above note 16, p. 275–278. 155

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was likely to mean that suspicions would be informed on the basis of such criteria as colour, language and religion and thus risked being discriminatory.160 The 1995 Recommendation aimed to get around this criticism by stipulating clearly in the preamble that the measure was in keeping with EU law, the ECHR (particularly Article 3 and Article 14 ECHR concerned respectively with the right to be free from torture and degrading treatment, and non-discrimination) and the Geneva Convention.161 However, no further provisions were specified in the main body of the text to allay fears of discrimination. Although the 1995 Recommendation referred to specific human rights provisions, and in particular Article 3 ECHR where the European Court of Human Rights has held that expulsion to countries where there is a real risk of torture or degrading treatment, including the lack of adequate health care, is not permissible,162 there was no mention of the possibility that in certain circumstances expulsion may also be in breach of the right to private and family life under Article 8 ECHR. Of particular importance here is the jurisprudence of the Court on the expulsion of long-term resident non-nationals, particularly second-generation migrants, with strong family ties.163 Since 2000, numerous measures have been adopted relating to the expulsion of third-country nationals in an irregular situation, including cooperation in respect of transit for the purposes of removal by air and the organisation of joint flights,164 and of course the Returns Directive discussed in Section 3.3 above. The introduction of a system making it possible for Member States to mutually recognize decisions on the expulsion of third-country nationals,165 – which can be subject to similar criticisms to those identified in Section 3.1 above relating to the refusal of entry into the EU to a third-country national who has been reported to the SIS for immigration reasons – has not been

  Developing EU Immigration and Asylum Policies, ibid., p. 287.   Above note 90, Preamble, para. 5. 162   See respectively Eur. Court HR, Chahal v. U.K., above note 100, and Eur. Court HR, D v. UK, judgment of 2 May 1997, EHRR 24 (1997), 423. 163   See e.g. Eur. Court HR, Nasri v. France, EHRR 21 (1996), 458, Eur. Court HR, Beldjoudi v. France, judgment of 26 March 1992, EHRR 14 (1992), 801 and Eur. Court HR, Moustaquim v. Belgium, judgment of 18 Feb. 1981, EHRR 13 (1991), 802. 164   See respectively Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air, OJ 2003 L 321/26 and Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders, OJ 2004 L 261/28. 165   Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals, OJ 2001 L 149/34. 160 161

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successful because of the lack of political will among many Member States to apply it. 3.5.2. Readmission The adoption of effective laws and efficient practices for the expulsion of migrants in an irregular situation from a State’s territory cannot possibly succeed if corresponding action is not taken to ensure that the intended destination country admits the migrants, whether this is their country of origin or a third state. In 2000, many EU Member States had adopted such agreements, particularly with adjoining Central and Eastern European countries.166 Both the Schengen Implementing Agreement and the Dublin Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities167 provided a framework relating to the readmission of migrants in an irregular situation. The Dublin Convention specified that Member States were obliged to take back an asylum-seeker whose application they had rejected and who was unlawfully in another Member State unless they had already taken measures to enforce the expulsion of that person, either to the country of origin or to a third country which he or she could lawfully enter.168 As noted earlier, Article 23 SIA referred also to the expulsion of migrants in an irregular situation under readmission agreements, although one significant difference to the operation of the Dublin Convention in respect of rejected asylum-seekers was that there was no requirement in Article 23 SIA for other contracting parties to take back those migrants where it could be shown that they were responsible for their unlawful presence. The Schengen Executive Committee adopted a number of practical measures pursuant to this provision, although it did not go so far as to propose a framework readmission agreement or standard clauses to be inserted in readmission agreements entered into by Schengen States with third countries. The measures adopted were concerned with the guiding principles within the framework of admission agreements between contracting parties governing the means of proof by which the unlawful residence in or transit through the territory of the requested contracting party by foreign nationals was to be established; cooperation between contracting

  For an early inventory of readmission agreements, see IOM, Technical Cooperation Centre for Eastern Europe and Central Asia, and International Centre for Migration Policy Development (ICMPD), Migration in Central and Eastern Europe: 1999 Review, Geneva: IOM 1999, p. 138 (Table II.15). 167   OJ 1997 C 254/1 (entry into force 1 Sept. 1997). 168   Ibid., Arts. 10(1)(e) and 10(4). 166

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parties in returning foreign nationals by air; and the measures to be taken in respect of third countries posing problems with regard to the issue of documents required for expulsion from the Schengen territory.169 The last measure was rather draconian in effect and suggested, as a last resort, possible repercussions for legal migration in terms of retaliatory measures that might be adopted (e.g. policy on issuing visas) if authorities in the third countries concerned failed to issue documents for the repatriation of their undocumented foreign nationals. On 30 November 1994, the JHA Council adopted a recommendation under the former third pillar proposing a harmonised set of principles with regard to readmission in the form of a specimen bilateral agreement between a Member State and a third country.170 This recommendation built on provisions in earlier measures advocating that States enter into multilateral (preferably) or bilateral standard format readmission agreements with third countries. The specimen treaty obliged the requested contracting State to readmit three groups of persons who no longer fulfilled the conditions in force for entry to or residence on the territory of the requesting contracting State: (i) their own nationals; (ii) third-country nationals who could be shown to have entered their territory via an external frontier; and (iii) third-country nationals who held a valid visa issued by the requested contracting State.171 The specimen agreement was criticised for failing to give adequate protection to asylumseekers and for not requiring explicitly that the contracting States comply with important international obligations, such as the Geneva Convention and the ECHR.172 In this respect, it was strongly argued that ‘readmission agreements with third states should only be applied after a request for residence or asylum has been carefully processed’.173 The entry into force of the Amsterdam Treaty limited the powers of Member States to enter into readmission agreements with third countries. Although it was still possible for individual Member States to enter into such agreements, the inclusion of the power to conclude readmission agreements

  See respectively Decisions SCH/Com-ex (97) 39 Rev of 15 Dec. 1997; SCH/Com-ex (98) 10 of 21 April 1998; and SCH/Com-ex (98) 18 Rev of 23 June 1998. These measures, as with Article 23 SIA, were all given a legal base by the Council in Arts. 62(3) and 63(3) EC and thus constituted Community law at the time. 170   OJ 1996 C 274/20 [hereinafter Specimen Agreement]. See also JHA Council Recom­ mendation of 24 July 1995 on the guiding principles to be followed in drawing up protocols on the implementation of readmission agreements, OJ 1996 C 274/25. 171   Specimen Agreement, above note 170, Arts. 1–3. 172   Developing EU Immigration and Asylum Policies, above note 16, pp. 406–407. 173   Academic Group on Immigration, above note 83, p. 20, para. 3. 169

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in Article 63(3)(b) in Title IV EC meant that the Council alone or the Member States acting collectively were no longer able to enter into such agreements.174 As noted earlier in Section 2.4, the Tampere Conclusions foresaw further action in this field, in the conclusion of readmission agreements between the EU and third states or the inclusion of standard clauses in other agreements between the EU and third countries or groups of countries.175 Clauses relating to readmission policy subsequently appeared in some Association and Cooperation agreements,176 although they did not comply with a uniform format. At its meeting in December 1999, however, the JHA Council agreed the text of future wording to be included in Community readmission agreements or mixed agreements with third countries.177 The Tampere Conclusions also proposed the adoption of rules on internal readmission.178 The Finnish Government initiated a draft Council Regulation on internal readmission,179 the purpose of which was ‘to determine obligations as between Member States for the readmission of third-country nationals’.180 However, the proposed measure emphasised that it did not seek to prevent Member States from returning third-country nationals to their countries of origin or any third country which they were entitled to enter, and was thus in accordance with Article 23 SIA.181 The draft Regulation followed a similar structure to the specimen bilateral readmission agreement discussed above and, broadly-speaking, obliged requested contracting parties to readmit two groups of third-country nationals who did not fulfil, or no longer fulfilled, the conditions in force for entry to or residence on the territory of the requesting Member State, namely those holding a valid residence permit or valid visa issued by the requested Member State and those who it could be proved irregularly crossed the border into the requested Member State by land, sea or air, having come from a third country.182 In contrast to the earlier specimen   Migration News Sheet No. 195/99 (June 1999), p. 1 with reference to an opinion of the Council’s Legal Service. 175   Tampere Conclusions, above note 38, para. 27. 176   See e.g. Art. 29 of the Partnership and Cooperation Agreement with Ukraine, above note 58 and accompanying text. 177   Conséquences de l’entrée en vigueur du traité d’Amsterdam sur les clauses de réadmission dans les accords communautaires et dans les accords entre la Communauté européenne, ses Etats membres et des pays tiers (accords mixtes) – Adoption d’une décision du Conseil (available only in French). 178   Tampere Conclusions, above note 38, para. 27. 179   OJ 1999 C 353/6. 180   Ibid., Art.1(1). 181   Ibid., Art. 1(5) and Preamble, para. 3. 182   Ibid., Arts. 4, 5 and 8 respectively. 174

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readmission agreement, the Finnish proposal did not mention the Geneva Convention or the ECHR.183 A further development was the extension of the database for comparing the fingerprints of asylum-seekers (‘Eurodac’), prepared originally by the JHA Council as a draft convention under the ‘old third pillar’ to facilitate the implementation of the Dublin Convention, to undocumented migrants, which is designed to assist in their expulsion and readmission if they claim asylum in another Member State at a later date or if it transpires that they have previously lodged a claim elsewhere.184 The Council Regulation, adopted in 2000, imposes a strict obligation on Member States to take the fingerprints of those apprehended in connection with the irregular crossing of an external frontier and to transmit these fingerprints to Eurodac so that they can be compared with the data of those subsequently claiming asylum in one of the Member States. A Member State is also permitted to transmit the fingerprints of a person found unlawfully present within its territory to Eurodac in order to check whether the person concerned has previously claimed asylum in another Member State.185 In 1998–99, in a report of the United Kingdom House of Lords Select Committee on the EU, the argument was advanced that such a system would not necessarily improve the functioning of the then Dublin Convention because the Member State entering the fingerprints of an asylumseeker or an undocumented migrant into the database would make itself responsible for that person in the future and might therefore be reluctant to submit this information. Moreover, the burden would most likely fall on those Member States with external EU borders with or in close proximity to third countries,186 which now include of course the ten Central and Eastern European countries that joined the EU in 2004 and 2007, as well as Cyprus and Malta. With regard to readmission to third countries, since 2000, EU-wide readmission agreements, involving the readmission of ‘own’ as well as ‘other’ thirdcountry nationals, have been adopted.187 A number of these agreements have

  Compare here with Art. 23(5) SIA discussed at the beginning of Section 3.5 above.   Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, OJ 2000 L 316/1. 185   Ibid., Arts. 8 and 11. 186   Fingerprinting Illegal Immigrants: Extending the Eurodac Convention (House of Lords Select Committee on the European Communities, 10th Report, 1998–1999), para. 61 (opinion of ILPA). 187   To date, EU-wide readmission agreements with Hong Kong SAR, Macao SAR, Sri Lanka, Albania, Russian Federation, Ukraine, Serbia, Montenegro, Bosnia and Herzegovina, the 183 184

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already entered into force and are being implemented. Some have also been tied to visa facilitation arrangements, in particular with countries in the EU neighbourhood.188 Internal readmission of asylum-seekers is now found in the ‘Dublin II Regulation’,189 which replaced the Dublin Convention’, and continues to be subject to similar criticisms concerning it’s unequal application throughout the EU because of the geographic position of some Member States as well as the weakness of asylum determination procedures in others, which undermines the raison d’être of a system based on the broad assumption of a generally equitable determination of asylum claims throughout the EU. Moreover, the extension of Eurodac to undocumented migrants does not appear to have brought about the expected results in terms of registering a significant number of ‘hits’. According to the report for 2009, only 20,363 hits were made against persons who entered EU territory irregularly (mainly to Greece and Italy) and then claimed asylum in another Member State.190 4.  Defining a More Positive and Comprehensive Approach? This article has thus far focused on past and currently applicable EU measures aimed at addressing and preventing irregular migration. The measures discussed would have little chance of success without cooperation and concerted action, which the Commission recognised back in 1974 as integral to a successful strategy against irregular migration. A comprehensive approach, however, should not only focus on cooperation among EU Member States in addressing and preventing irregular migration, but should also include more positive measures, such as the protection of the rights of migrants in an irregular situation, an emphasis on genuine voluntary return measures rather than forced expulsion, the possibility of regularisation in the host country, effective cooperation between the EU and third countries, particularly with transit Former Yugoslav Republic of Macedonia (FYROM), and Moldova have been concluded and have entered in force. An agreement has also be concluded with Pakistan and signed with Georgia. I am grateful to Professor Steve Peers for supplying this information. 188   E.g. Russia, Ukraine and the Western Balkan countries. 189   Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ 2003 L 50/1. 190   European Commission, Annual report to the European Parliament and the Council on the activities of the EURODAC Central Unit in 2009, COM (2010) 415 final of 2 Aug. 2010, p. 7. For the earlier Commission Reports on Eurodac, see SEC (2007) 1164, COM (2009) 13 and COM (2009) 494.

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countries and countries of origin, and the development of a coherent and equitable legal immigration policy. 4.1.  Recognising Migrants in an Irregular Situation as Human Beings: Protecting Their Rights 4.1.1.  International Human Rights Standards In its 1994 Communication on Immigration and Asylum Policies, the European Commission identified three key components of a comprehensive migration policy: taking action on migration pressure; controlling migration flows; and strengthening integration policies for the benefit of legal migrants.191 This policy was characterized by the need to find a balance between restrictive policies often pursued by Member States and other approaches. Indeed, the Commission argued that admission policies ‘cannot be purely restrictive, as they should respect international obligations and humanitarian traditions in general. Hence, controlling migration does not necessarily imply bringing it to an end: it means migration management’.192 In a similar vein, addressing irregular migration could not rest on restrictive measures alone and had to be considered in the context of an international human rights law framework: Although a generally firm and effective action against illegal immigration is essential …, it should not be forgotten that the persons concerned can be subject to exploitation and be in an extremely vulnerable position. It should therefore be taken into account that they are entitled to a fair procedure ensuring full protection of the human rights and fundamental freedoms as provided by international law. To this effect, defining minimum standards will be a necessary step which will equally help ensure the credibility of restrictive policies concerning illegal immigration.193

To further this objective, the Commission called upon Member States to sign and ratify the UN’s Convention on Migrant Workers.194 Although this instrument constitutes a challenging compromise between State sovereign interests and the protection of non-nationals, it is particularly significant for irregular migration. In addition to Part VI of the Convention, which contains State party obligations in respect of the prevention of irregular migration, Part III lists a broad range of basic rights that also encompass economic, social and cultural rights such as the provision of emergency health care and primary

  Immigration and Asylum Policies, above note 22, p. 11, para. 38.   Ibid., p. 20, para. 70. 193   Ibid., p. 29, para. 109. 194   Ibid., pp. 29–30, para. 110. 191 192

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school education, which are applicable to all migrant workers, including those in an irregular situation. Although the Convention has only be ratified by 44 States parties to date,195 it is arguable that a number of such obligations in respect of undocumented migrants have already been accepted by most States when ratifying other relevant international human rights treaties, particularly the International Covenant on Economic, Social and Cultural Rights,196 which makes few distinctions on the basis of nationality and legal status.197 Given the marked reluctance by EU Member States to commit themselves to protecting the basic economic and social rights of migrants in an irregular situation,198 it is perhaps not surprising that the EU acquis continues to be silent on this question, and indeed, since the Commission’s 1994 Communication, there has been no or very limited mention of the 1990 Convention. It is fair to say of course that some of the measures discussed in Section 3 above afford limited protection to those undocumented migrants who are the victims of abusive and exploitative unauthorised employment or trafficking. The measures advocating the imposition of sanctions on employers and traffickers can be considered as having an important influence on efforts to reduce the most extreme forms of economic exploitation of migrant workers in an irregular situation. However, it is necessary to take a somewhat sceptical position when viewing such sanctions in a human rights context. Clearly, deterrence constitutes their overriding objective. Indeed, as has already been noted in Section 3.2, many States also impose penalties, frequently criminal in nature and which may lead to imprisonment, against persons who cross their borders without authorisation. 4.1.2.  Protecting the Rights of Victims of Trafficking Although most of the measures on trafficking, described earlier in Section 3.4.3, focus on prevention, a JHA Council Joint Action, adopted in February 1997, recognised that ‘trade in human beings and the sexual exploitation of children are serious breaches of fundamental individual rights, and, in particular, human dignity’. The Joint Action identified the protection of trafficking victims as an important objective and called upon Member States to take the   See above note 92, where it is also observed that the Commission’s advice has not been heeded by a single EU Member State. 196   16 Dec. 1966, 993 UNTS 3. 197   See Cholewinski, above note 92, pp. 57–61. 198   See also ILO Convention 143, above note 11, which obliges States parties to respect ‘the basic rights of all migrant workers’ (Art. 1). The Convention also guarantees undocumented migrants in Article 9(1) ‘equality of treatment … in respect of rights arising out of past employment as regards remuneration, social security and other benefits’. 195

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necessary measures to ensure ‘appropriate assistance for victims and their families’, which could entail the grant of ‘provisional residence status’ in those cases where victims might be required by the State’s criminal justice system to give evidence in a criminal action.199 The focus on protecting the victims of trafficking was reiterated in the Tampere Conclusions, which provided that ‘the rights of the victims of such activities [trafficking in human beings and economic exploitation of migrants] shall be secured with special emphasis on the problems of women and children’.200 In 2004, the Council adopted a Directive relating to victims of trafficking,201 which obliges Member State to establish a system for the issuing of temporary residence permits to victims of trafficking who cooperate with the authorities  in proceedings brought against the perpetrators. Member States may also extend the personal scope of the Directive to third-country nationals who have been the subject of an action to facilitate irregular migration.202 However, there are no explicit provisions in the Directive requiring Member States to grant such permits to victims of trafficking where no proceedings against traffickers are foreseen, or if no cooperation on the part of the victim is evident or possible unless the person in question also makes an asylum or other protection claim.203 As with other EU measures in the field of asylum and migration, the Directive allows for more favourable national provisions, which may, for example, include the grant of a temporary residence status to the victim that is not conditional on cooperation in criminal proceedings, a position that actually applies in Denmark.204   JHA Council Joint Action of 24 Feb. 1997 concerning action to combat trafficking in human beings and sexual exploitation of children, OJ 1997 L 63/2, Preamble, para. 2 and para. F(b) (i) respectively. A little over one year earlier, on 18 January 1996, in a Resolution on trafficking in human beings (OJ 1996 C 32/88), the European Parliament called for EU Member States ‘to take direct measures to ensure the safety and dignity of the victims [of trafficking] by guaranteeing them the right to bring civil proceedings, a temporary residence permit for humanitarian reasons and protection for them during and after the trial where they are called upon to testify’ (para. 25). 200   Tampere Conclusions, above note 38, para. 23. 201   Council Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, above note 147. 202   Ibid., Art. 3(2). 203   Ibid., Recital 4: ‘This Directive is without prejudice to the protection granted to refugees, to beneficiaries of subsidiary protection and persons seeking international protection under international refugee law and without prejudice to other human rights instruments’. 204  ICMPD, Study on the assessment of the extent of different types of Trafficking in Human Beings in EU countries, Vienna: ICMPD, April 2010, p. 12 (Table 1), available at http://research .icmpd.org/1465.html. 199

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It is arguable, however that the limited protective measures adopted by the Council to date, including the possible grant of provisional residence status to victims of trafficking, have also to be considered in the light of the deterrence objective as such measures are aimed principally at facilitating the successful prosecution of the traffickers involved rather than affording durable protection for victims. Future action in this area should take example from the more comprehensive approach in this area developed at the UN level. One of the purposes of the Protocol to Prevent, Suppress and Punish Trafficking in Persons supplementing the UN Convention Against Transnational Organized Crime, referred to in Section 3.4.3 above, is to provide assistance for and protection to victims of trafficking. In this regard, the Protocol lists a number of measures: information on relevant court and administrative proceedings; assistance with criminal proceedings against the offenders; appropriate housing; counselling and information; medical, psychological and material assistance; employment, educational and training opportunities; and the provision of physical safety for victims while they are in the territories of States parties.205 The Protocol also contains a unique provision urging each State party to consider ‘adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases’.206 4.2.  Voluntary Return Under Article 23(1) SIA concerned with expulsion and readmission, the first obligation on migrants in an irregular situation was to leave the territory. Expulsion was only to be resorted to if the person concerned had not left voluntarily or if it was assumed that she or he would not leave. Therefore, the emphasis was on voluntary return rather than expulsion. Voluntary return was widely regarded as the ‘most dignified and least costly return option’.207 The Council considered harmonising the policies of Member States on assistance for the voluntary return of third-country nationals. With a view to possible future action in this area, the Council adopted a Decision in May 1997 to exchange information on voluntary repatriation programmes developed by

  Protocol to Prevent, Suppress and Punish Trafficking in Persons, above note 131, Art. 6.   Ibid., Art. 7. Emphasis added. In its 1996 Resolution on trafficking in human beings, above note 199, the European Parliament also urged Member States ‘to allow victims to remain on their territory in cases where repatriation could seriously endanger those persons’ lives and make them more vulnerable to further exploitation’ (para. 27). 207   See also Immigration and Asylum Policies, above note 22, p. 30, para. 111. 205 206

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Member States.208 The decision encompassed both regular migrants and those in an irregular situation, and recognised, with regard to the latter, that such assistance was ‘in line with the European humanitarian tradition and may contribute to finding a dignified solution to reducing the number of illegally resident third-country nationals in the Member States’.209 In the Returns Directive, Member States are required to ensure that the return decision concerning irregularly staying third-country nationals provides for an appropriate period of voluntary departure of between seven and 30 days before exercising the option of forced return,210 although this can be waived under certain specified circumstances.211 This is buttressed by the European Return Fund, applicable for the period 2008–2013,212 which makes funds available inter alia to support national voluntary return programmes that may include the provision of a reintegration assistance package to the third-country nationals in question with a view to facilitating the sustainability of their return. Such voluntary return activities are often applied at the national level in collaboration with the International Organization for Migration (IOM). 4.3. Regularisation The EU acquis on irregular migration does not contain any explicit provisions relating to the regularisation or legalisation of migrants in an undocumented or irregular situation. Therefore, it remains the sovereign prerogative of Member States to determine and regulate their own membership through the grant of temporary or permanent residence to non-nationals or through naturalisation. However, while Article 63(3)(b) EC, concerning the adoption of measures on ‘illegal immigration and residence …,’ appeared broad enough to encompass a future EU policy on regularisation, the Vienna Action Plan and the Tampere Conclusions did not refer to this question. Since 2000, regularisation of irregular migrants has been discussed in the EU, although no explicit legally binding measures directly address the topic.

  Above note 157.   Ibid., Preamble, para. 5. 210   Return Directive, above note 102, Art. 7(1). 211   Ibid., Art. 7(4) – risk of absconding; application for legal stay is dismissed as manifestly unfounded or fraudulent; or the person concerned poses a risk to public policy, public security or national security. 212   Decision 575/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the European Return Fund for the period 2008 to 2013 as part of the General Programme Solidarity and Management of Migration Flows, OJ 2007 L 144/45. 208 209

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A 2006 Council Decision requiring Member States to inform one another of national measures on asylum and migration that are likely to have a significant impact on several Member States or the EU as a whole213 was triggered by the large-scale Spanish regularisation exercise in 2005, which attracted criticism in a number of ‘northern’ EU Member States. The European Pact on Immigration and Asylum, adopted in September 2008 by the European Council under the auspices of the French Presidency also aims to discourage such regularisation practices. In this political document, and in a reaffirmation of its determination ‘to control illegal immigration’, the European Council agreed ‘to use only case-by-case regularisation, rather than generalised regularisation, under national law, for humanitarian or economic reasons’.214 More recently, there were attempts to include a reference in the text of the Stockholm Programme – which sets the agenda for the next five years (2010–2014) of EU policymaking in the field of liberty, security and justice, including asylum and immigration – to the need to issue a status to those migrants in an irregular situation who cannot be removed from the EU for practical or humanitarian reasons, although this was dropped before the adoption of the final text.215 Given the current emphasis on preventing irregular migration in the EU, it could be argued that Member States should not legalise their foreign undocumented population too frequently because such actions may well be selfdefeating by encouraging further irregular migration to the EU,216 an assertion however that remains to be proven. Conversely, however, regularisation can be viewed as a legitimate device for reducing the number of undocumented migrants present in the country concerned provided that effective and sustainable measures are taken at the same time to prevent further unauthorized entry. Regularisation, arguably, undermines the exploitative underground or informal labour market where most migrant workers in an irregular situation are found.217 It is also cost-effective by facilitating the integration of such migrants thus helping them to become useful and productive members of the host society. Moreover, from a humanitarian standpoint, States generally find   Council Decision 2006/688/EC of 5 October 2006 on the establishment of a mutual information mechanism concerning Member States’ measures in the areas of asylum and immigration, OJ 2006 L 283/40. 214   European Pact on Immigration and Asylum, Council doc. 13440/08 (24 Sept. 2008), p. 7. 215   The Stockholm Programme – An open and secure Europe serving and protecting the citizens, Council Doc. 17024/09 (Brussels, 2 Dec. 2009), Annex. 216   See also Ghosh, above note 64, p. 150. 217  Ghosh, ibid., p. 150–151, contends that ‘one of the main justifications of regularisation is to end the human suffering and exploitation of irregular immigrants and improve their general working conditions. By removing an important source of cheap and docile labour, it encourages the process of industrial upgrading and structural change in the economy’. 213

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it difficult to expel those undocumented migrants who have been employed in a country for a certain period of time, particularly if their presence has been tolerated by the authorities. Under such circumstances, regularisation becomes the equitable option: Illegal employment of migrant workers partly results from a certain tolerance by States. The consequences of the slowness of existing procedures, and the incapacity of States to effectively detect whether migrants are illegally employed in their territory ought not to fall exclusively upon migrant workers in an irregular situation. … [A]s a matter of equity in such cases, the State concerned should examine, on a case-by-case basis, the situation of each migrant worker in an irregular situation who has been living for a certain length of time in the country, and consider the possibility of delivering a residence permit.218

Although there are no strict international obligations concerning this question, both the UN Convention on Migrant Workers and ILO standards clearly support regularisation of undocumented migrants. The UN Convention takes a cautious approach emphasising that the rights afforded to migrant workers in an irregular situation in Part III of the Convention do not imply regularisation of their situation.219 However, it then instructs States parties, whenever they are considering the possibility of regularising such migrants, to take ‘appropriate account … of the circumstances of their entry, the duration of their stay in the States of employment and other relevant considerations, in particular those relating to their family situation’.220 ILO standards declare that States are free to regularise the situation of undocumented migrants if they wish221 and also recommend that such migrants should be informed as soon as possible as to whether their position may be regularised or not.222 This relatively favourable approach to regularising the situation of undocumented migrants at the international level simply reflects practice at the national level. In the past, many countries, including EU Member States, have organised regularisation programmes, and continue to do so.223   ILO General Survey, above note 91, para. 313.   ICRMW, above note 92, Art. 35. 220   Ibid., Art. 69(2). 221  Convention 143, above note 92, Art. 9(4): ‘Nothing in this Convention shall prevent Members from giving persons who are illegally residing or working within the country the right to stay and to take up legal employment’. 222   See ILO Migrant Workers Recommendation, 1975 (No. 151), para. 8(1). For the text, see ILO’s website at.http://www.ilo.org/ilolex/english/convdisp1.htm. 223   M. Baldwin-Edwards and A. Kraler, REGINE Regularisations in Europe. Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU, Final Report, Vienna: ICMPD 2009, available at http://research.icmpd.org/1184 .html. 218 219

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4.4.  Genuine Partnerships with Countries of Origin and Transit The Commission’s articulation of a comprehensive strategy on migration in its 1994 Communication included the need to take action on migration pressures, and this dimension subsequently found resonance in the Council’s decision to set up a High Level Working Group of senior civil servants on Asylum and Migration in December 1998. The Working Group was given the task ‘to establish a common integrated, cross-pillar approach targeted at the situation in the most important countries of origin of asylum-seekers and migrants’.224 The following countries were chosen for preparation of action plans: Afghanistan, Albania, Iraq, Morocco, Somalia, and Sri Lanka.225 The Working Group’s terms of reference, which were particularly relevant for irregular migration, included: joint analysis of the cause of migration flows from those countries; possibilities for strengthening development strategies between the EU and its Member States and the country concerned; indication of the possibilities or actual state of play with regard to readmission clauses in association or other agreements and for concluding an EU readmission agreement with the country in question; joint measures in the fields of asylum and migration, including information campaigns in countries of origin and transit and the fight against cross-border crime; and exploration of measures aimed at voluntary repatriation.226 The Working Group completed and submitted the action plans to the Council, which approved five plans with the exception of the plan on Albania that was submitted as an interim report.227 The Tampere European Council then agreed to continue the Working Group’s mandate and the drawing up of further action plans, and invited the Council and the Commission to report back on the implementation of the first action plans in December 2000.228 However, the action plans were the subject of harsh criticism on a number  of grounds in a subsequent resolution of the European Parliament.229

  Terms of Reference of the High Level Working Group on Asylum and Migration; preparation of action plans for the most important countries of origin and transit of asylum-seekers and migrants, 25 Jan. 1999 (Doc. C4-0133/99), para. 1. 225   Ibid., para. 3. 226   Ibid., Annex, paras. 1(c)(i), (ii), (v) and (vi), (ix) and (x) respectively. 227  See Afghanistan (Doc. C5-0162/99), Albania (interim report) (Doc. C5-0165/99), Iraq (Doc. C5-0162/99), Morocco (Doc. C4-0164/99), Somalia (Doc. C5-0161/99) and Sri Lanka (Doc. C5-0160/99). 228   Tampere Conclusions, above note 38, para. 12. 229   Resolution of 30 March 2000 on asylum-seekers and migrants – action plans for countries of origin or transit, above note 94. 224

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With regard to the substance of the action plans, the European Parliament contended that while the data they contain and the analyses they make of the situation in the target countries are, of course, useful, the action plans … neither make a real political contribution nor do they bring any Community added value to the solution of the problems which remain the root cause of immigration and asylum-seeking.230

The resolution also noted that ‘the action plans should have sought a better balance between security/prevention measures and reception/integration measures’ and that ‘the issue of human rights should have been a central topic of all discussions held prior to the adoption of the action plans, and should form part and parcel of implementation activities, as should the issue of the rule of law’.231 On the question of democratic accountability and transparency, the resolution admonished the Council for setting up the Working Group without subjecting it to democratic control, for not consulting adequately the political leaders and representatives of civil society in the target countries, and for the lack of specific consultation with the European Parliament.232 Finally, the resolution expressed concern at the lack of an appropriate EU budgetary allocation to implement the action plans and the ‘totally unrealistic’ timetable provided for their implementation.233 The criticism of the European Parliament has been addressed somewhat in subsequent EU action and particularly in the context of the Global Approach to Migration, adopted in 2005 and which reflects the external dimension of the EU’s migration and asylum policy.234 At least on its face, the Global Approach purports to adopt a more balanced approach focusing on three policy areas: (1) facilitating legal migration; (2) preventing irregular migration; and (3) harnessing migration for the development of third countries. One important tool of the Global Approach is Mobility Partnerships – nonbinding flexible instruments on managing migration that to date have been adopted between the EU and interested Member States with three third

  Ibid., point F.   Ibid., points I and J respectively. In this connection, the European Parliament contended, ibid., point 11, that it would be impossible to implement the action plan on Afghanistan given, inter alia, the perpetration there of ‘serious and persistent human rights violations’. 232   Ibid., points A, H and 3 and respectively. 233   Ibid., point 30. 234  See European Commission, Strengthening the Global Approach to Migration: Increasing Coordination, Coherence and Synergies, COM (2008) 611 final of 8 Oct. 2008, p. 1. 230 231

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countries in the EU neighbourhood: Cape Verde, Georgia and Moldova.235 These instruments encompass all the above policy elements and seek to come up with concrete practical initiatives to support them. However, a recent critique of Mobility Partnerships claims that they essentially still reflect the former security-based approach to cooperation on migration with third countries, albeit in a new and friendlier looking way.236 5. Conclusion In 2000, the creation of an EU asylum and immigration policy was still in its infancy and it was too early to state with any certainty what the parameters of this policy would be. But the transfer of asylum and immigration matters to the then Community pillar hastened the sense of urgency for all those concerned with the impact of this policy on the individual migrant as measures adopted under Title IV EC were given the binding force of EU law. Addressing and preventing irregular migration remains an important EU priority. The EU is clearly of the view that the objective of securing free movement of persons within the EU and the creation of an area of justice, liberty and security, not only for EU citizens but also for all those lawfully resident third-country nationals within the territories of Member States, can only succeed if effective action is taken against irregular migration. This article has provided an overview of the early measures taken by the EU to address and prevent irregular migration juxtaposed against subsequent legislative and policy developments. Ten years on from the original version of this article, the argument that undue emphasis on addressing and preventing irregular migration is unlikely to successfully reduce the influx of such migrants unless genuine attempts are also undertaken to safeguard their basic rights in the context of a   See respectively Joint Declaration on a Mobility Partnership between the European Union and the Republic of Cape Verde, Council doc. 9460/08 ADD 2; Joint Declaration on a Mobility Partnership between the European Union and Georgia, Council doc. 16396/09 ADD 1, Brussels, 20 Nov. 2009; and Joint Declaration on a Mobility Partnership between the European Union and the Republic of Moldova (May 2008). For an evaluation of progress to date, see European Commission, Staff Working Document, Mobility Partnerships as a tool of the Global Approach to Migration, SEC (2009) 1240, 18 Sept. 2009. 236   S. Carrera and R. Hernández i Sagrera, The Externalisation of the EU’s Labour Immigration Policy: Towards mobility or insecurity partnerships, Centre for European Policy Studies (CEPS) Working Document No. 321/October, available at http://www.ceps.eu/book/ externalisation-eu%E2%80%99s-labour-immigration-policy-towards-mobility-or-insecurity-partnerships. 235

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comprehensive migration policy – an approach supported to some extent in earlier Commission proposals – continues to be persuasive. The expert body of the ILO firmly supports this dual approach. In a chapter devoted to irregular migration in its 1999 General Survey examining the laws and practices of ILO Member States vis-à-vis ILO standards on migrant workers, the Committee of Independent Experts on the Application of Conventions and Recommendations concluded: Examination of the reports submitted to the Committee shows that member States of the ILO are, on the whole, very active in terms of attempting to combat clandestine migration – whether or not under abusive conditions – and against illegal employment. However, it appears that, short of establishing a disproportionate and expensive system of police surveillance, of which the efficiency could never be guaranteed, and without restricting public freedom, the multiplication of repressive laws and practices which have arisen in the past few years is not sufficient to efficiently control migration flows and abusive practices to which migrant workers can be victim often continue to occur on a similar scale. If the fight against clandestine migration and, a fortiori, the protection of nationals by both sending and receiving countries is justified, at the same time, it is important to ensure respect of the basic human rights of all migrant workers, in order to avoid migrant workers (notably those in an irregular situation) finding themselves in a situation where their rights are not respected and where they are vulnerable to abuses of all kinds. The protection of migrant workers and the fight against clandestine migration and illegal employment whilst protecting human rights is not always obvious in practice.237

This statement remains very relevant today. Addressing irregular migration in the context of protecting the basic human rights of individual migrants involved in the process and the adoption of constructive immigration measures must also mean keeping open legal channels for migration. While the EU continues to have competence to develop measures concerned with the conditions of entry and residence of third-country nationals,238 to date only a fragmented sectoral approach to the legal migration and employment of third-country nationals can be detected.239 In contrast, as

  ILO General Survey, above note 91, paras. 360–361.   Art. 79(2)(a) TFEU. However, the competence to determine volumes of admission of thirdcountry nationals coming from third countries to their territory remains with EU Member States. Art. 79(5) TFEU. 239   This sectoral approach was endorsed by the Commission in its December 2005 Policy Plan on Legal Migration (COM (2005) 669), in which it proposed a directive on the issue of a single permit to lawfully employed third-country nationals and on a common set of rights, and separate directives on the conditions of entry and residence of highly qualified workers, seasonal workers, intra-corporate transferees and remunerated trainees. To date, only the directive on highly qualified workers has been adopted. See Council Directive 2009/50/EC 237 238

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early as March 2000, in its resolution on asylum-seekers and migrants, the European Parliament called upon Member States to ‘to make an effort to ensure that immigration is possible by legal routes’ and urged ‘minimum standards to be set for the admission of third-country nationals to the Union in accordance with the Commission proposals’.240 This recommendation was made against the background of the report of the UN Population Division, issued in 2000, highlighting the ‘replacement migration’ needed to offset declining and aging populations in EU Member States.241 The transfer of asylum and immigration matters to EU competence gave the EU a window of opportunity to devise an equitable and rights-based immigration policy aiming at preventing the abuses that often accompany irregular migration, but also to adopt more positive and far-reaching measures. The harsh lessons of the tragic deaths of the 58 Chinese migrants referred to at the beginning of this article, as well as subsequent tragic events, should

of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, OJ 2009 L 155/17. Under earlier Maastricht Treaty arrangements, Member States held a very restrictive line on the legal migration of thirdcountry nationals for the purpose of employment. In June 1994, the JHA Council adopted a resolution, which was based on the following rather questionable premise: ‘At present … no Member State is pursuing an active immigration policy. All States have, on the contrary, curtailed the possibility of permanent legal immigration for economic, social and thus political reasons. Admission for temporary employment may therefore be considered only in terms of what is purely exceptional’. See Resolution of 20 June 1994 on limitations on admission of third-country nationals to the territory of the Member States for employment, OJ 1996 C 274/3, para. A(ii). The first ‘principle’ articulated in the resolution, ibid., para. C(i), first indent, was that ‘Member States will refuse entry to their territories of third-country nationals for the purpose of employment’. Emphasis added. 240   Above note 94, point 18. The Commission proposed a more positive approach to the admission of third-country nationals for economic and non-economic purposes shortly before the entry into force of the Amsterdam Treaty. See Proposal for a Council Act Establishing the Convention on Rules for the Admission of Third-country Nationals to the Member States of the European Union, COM (97) 387 final of 30 July 1997. For a critical overview of this proposal at the time, see S. Peers, ‘Raising Minimum Standards, or Racing for the Bottom? The Commission’s Proposed Migration Convention’, in: E. Guild (ed.), The Legal Framework and Social Consequences of Free Movement of Persons in the European Union, The Hague: Kluwer 1999, p. 149–166. A later proposal under the Amsterdam Treaty arrangements for a Directive on the conditions of entry and residence of third-country nationals to the EU for the purpose of paid employment and self-employed activities (COM (2001) 386 final of 11 July 2001), based on a horizontal approach, did not find consensus in the Council and was subsequently withdrawn by the Commission. 241  Above note 94, point N. For the UN report, see UN Population Division, Replacement Migration: Is it a Solution to Declining and Aging Populations? UN Doc. ESA/P/WP.160 (21 March 2000), available at http://www.un.org/esa/population/publications/ReplMigED/ migration.htm.

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have generated serious debate in support of more legal channels for immigration into the EU. The original version of this article drafted in 2000 concluded that if the ‘soft law’ measures adopted under former JHA cooperation were transposed ‘lock, stock and barrel’ into binding EU law and if the Schengen acquis was not reformed, the policy addressing and preventing irregular migration would take a step backwards. No one would gain, neither the EU nor the migrants themselves. The only ‘winners’ would be ‘those able to charge still higher fees for breaching the walls that are constructed to keep irregular migrants out’. While the updated version of the article points to some ‘human rights improvements’, often initiated by the European Parliament exercising its co-decision role, a security approach continues to predominate – especially in the light of the terrorist attacks in New York on September 11, 2001 and subsequent atrocities – and the overall impression is that much still remains to be done before the EU may claim to have adopted a more comprehensive and feasible law and policy on irregular migration.

The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly? (The adoption of Directive 2008/115: the Returns Directive) Diego Acosta Arcarazo* 1. Introduction In his 1966 timeless masterpiece ‘The Good, the Bad and the Ugly’, director Sergio Leone tells the story of three men who ruthlessly pursue a mythical buried treasure. The film is a morality play which shows how wrong can triumph over right, at least in the short term, and how sometimes good acts do go unrewarded. The construction of a common migration law for the European Union contains some parallels. As in the film, there are three different actors: the European Parliament (‘the good’), the Council (‘the bad’) and the Commission (‘the ugly’). Again as in the film, there are different evolving alliances between the actors and different events change the balance of power among the players. First, the Council could be depicted as ‘the bad’.1 This has been a consequence of the majority of the Member States being reluctant to give up power in this area, as they have considered it a core part of their sovereignty.2 This reluctance resulted in the lack of a European Community competence in the area for many years. The environment changed substantially with the introduction of the Single European Act and the obligation to remove all internal frontiers by 1992. Certainly, the incapacity to agree about the exact meaning of Article 83 marked the beginning of a struggle between, on the one hand, *  Diego Acosta was involved in the drafting of the amendments to the Commission proposal in the Committee on Development of the European Parliament. 1   It is acknowledged that the Council is an actor with different layers or faces in which Member States play the predominant role. See G. Papagianni, Institutional and Policy Dynamics of EU Migration Law, Leiden: Martinus Nijhoff 2006, p. 199–220. 2   B. Melis, Negotiating Europe’s Immigration Frontiers, The Hague: Kluwer Law International 2001, p. 11. 3   Article 8 defined the Single European Market as an area without frontiers in which free movement of good, services, people and capital was ensured. This is currently Article 26.

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the  Council and, on the other, the Parliament and the Commission.4 This dichotomy in the positions of the different actors was confirmed with the adoption of the Maastricht Treaty5 and with the following Amsterdam Treaty (despite the introduction of a new Title IV of Part III of the EC Treaty).6 Secondly, the Commission could be labelled as ‘the ugly’, depicted as such because its proposals have never been appealing enough for the Council. Put simply, as one Commissioner expressed, the Commission is not sexy enough. In fact, when a Commission proposal in the area has not been completely dismissed,7 it has usually been watered down.8 However, the reasons why the Commission has had a more friendly approach towards immigration do not necessarily have to do with noble motives. The fact that Commission staff or Commissioners do not have to face re-election and the importance that the Commission gives to the enhancement of its own position have played a significant role in the Commission’s attitude towards immigration.9 Finally, the Parliament could be viewed as ‘the good’. Historically, the Parliament “consistently argued for a comprehensive and migrant-friendly approach”.10 There is however an important point to be emphasised here,   See on this, E. Guild, Immigration Law in the European Community, The Hague: Kluwer Law International 2001.     5   See on this, S. Peers, ‘Building Fortress Europe: The Development of EU Migration Law’, Common Market Law Review 35/6 (1998), p. 1235–1272.     6   See on this, K. Hailbronner, Immigration and Asylum Law and Policy of the European Union, The Hague: Kluwer Law International 2000. In fact, it could be argued that the Council can be depicted as the ‘bad’ because, when Member States agreed to share competence with the Community over immigration matters with the Amsterdam Treaty, it pursued from the outset a very restrictive immigration policy.     7   One good example is the proposal for a Directive dealing with the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities, COM (2001) 386 final. See on this S. Peers and N. Rogers, EU Immigration and Asylum Law. Text and Commentary, Leiden/Boston: Martinus Nijhoff Publishers 2006, p. 661–686.     8   One relevant example of this is Directive 2003/109 concerning the status of third-country nationals who are long-term residents, OJ 2004, L 16/44. See on this, among others, D. Acosta Arcarazo, The Long-term Residence Status as a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109, Leiden: Martinus Nijhoff 2011; S. Boelaert-Suominen, ‘Non-EU Nationals and the Council Directive 2003/109/EC on the Status of Third-Country Nationals who are Long-term Residents: Five Paces Forward and Possibly Three Paces Back’, Common Market Law Review 42/4 (2005), p. 1011–1052; K. Groenendijk, ‘The Long-Term Residents Directive, Denizenship and Integration’, in: A. Baldaccini, E. Guild and H. Toner (eds), Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy, Oxford: Hart Publishing 2007, p. 429–450.     9   A. Geddes, Immigration and European Integration. Towards Fortress Europe?, Manchester/ New York: Manchester University Press 2000, p. 88. 10   G. Papagianni, op.cit., p. 252.     4

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which is that the institutional struggles in Europe between the Parliament and the Council to gain more legal power may have contributed “to parliamentary consensus, giving an impression that ideological factors (were) not operative” in migration matters.11 In fact, Monar showed how there were important discrepancies along ideological lines in the positions of the Parliament and how sometimes these positions were only adopted with exiguous majorities.12 The position of the three main actors was constrained by the special transitional arrangements and procedural limits adopted under Article 67 of the Amsterdam Treaty. According to this Article, in order to pass legislation in many of the areas in this field the Council had to act unanimously on a proposal from the Commission or on the initiative of a Member State, and after merely consulting the European Parliament. There was a glimmer of hope however, owing to developments in the area of irregular13 migration where codecision has been in force since 1 January 2005.14 With this consequent legal involvement of the European Parliament it was envisaged that there would be an improvement in the measures adopted.15 The fact that the Council would not need unanimity but only qualified majority was another sign of possible progress.16

  G. Lahav, ‘Ideological and Party Constraints on Immigration Attitudes in Europe’, Journal of Common Market Studies 35/3 (1997), p. 377–406, at p. 395. 12   J. Monar, ‘The European Parliament and Immigration Policy: its Positions and Possibilities of Control’, in: P.M. Twomey and G.D. Korella (eds), Towards a European Immigration Policy: Current Situation-Perspectives, Brussels: European Interuniversity Press 1995, p. 123–137. See also on this, G. Lahav, Immigration and Politics in the New Europe. Reinventing Borders, Cambridge: Cambridge University Press 2004, at p. 126–135; S. Hix, ‘Legislative Behaviour and Party Competition in the European Parliament: An Application of Nominate to the EU’, Journal of Common Market Studies 39/4 (2001), p. 663–688. 13   The author prefers the use of the term irregular or undocumented migration as opposed to illegal migration. Both will be used as synonyms of illegal when appropriate in the paper. 14   See Council Decision of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty, OJ 2004 L 396/45. 15   It is important to mention the cautious approach of some authors to this idea. For instance, S. Juss warned about the danger of considering supranationalization as a ‘self-evident antidote to the exclusionary and securitized migration policy that has been enacted through inter-governmental cooperation’. S. Juss, ‘The Decline and Decay of European Refugee Policy’, Oxford Journal of Legal Studies 25/4 (2005), p. 749–792, at p. 749. 16   This is not so clear as the Council rarely votes but always tries to find a consensus even if qualified majority applies. See on this, G. Elkaïm, ‘Quelques Remarques du Point de Vue du Négotiateur’, in: F.J. Laferriere, H. Labayle and O. Edström (eds), La Politique Européenne d’Immigration et d’Asile: Bilan Critique Cinq Ans Après le Traité d’Amsterdam, Bruxelles: Bruylant 2005, p. 85–91; J. Lewis, ‘Informal Integration and the Supranational Construction of the Council’, Journal of European Public Policy 10/6 (2003), p. 996–1019. 11

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However, the recent adoption of the so-called Returns Directive by the European Parliament has cast doubts as to whether the future involvement of this institution will result in a more migrant-friendly approach in the European Union. This has been the first important immigration instrument adopted under co-decision and it has received a tremendous amount of criticism from other International Organizations,17 NGOs,18 the UNCHR and individual governments, notably in Latin America and Africa.19 A great deal of that criticism has been directed at the behaviour of the European Parliament in its approval of the text negotiated with the Council in the first reading, without introducing a single amendment. The reasons why the European Parliament voted in favour of the Directive will be analysed in time. But first, a question arises: Is the European Parliament becoming ‘bad’ and ‘ugly’ or has its involvement improved the Council position in a way which would not have been possible without its participation? This is the main issue that this article, in the following pages, will try to answer.20 2. Background Before the Commission proposed a Directive on common standards and procedures in Member States for returning illegally staying third-country nationals (Returns Directive),21 there had already been different instruments adopted concerning irregular immigration. The first one was Council Directive 2001/40 on mutual recognition of decisions on the expulsion of third-country nationals,22 which resulted from a French initiative. It offered the possibility for Member States to mutually recognise an expulsion decision issued by another Member State. In 2004, Council Decision 2004/19123 set out the criteria and practical arrangements  for the compensation of the financial imbalances resulting from the  Among them there can be mentioned the MERCOSUR, the Andean Community, the Organization of American States or the Council of Europe. 18   Amnesty International or ECRE among others. 19   See on this D. Acosta, Latin American Reactions to the Adoption of the Returns Directive, Centre for European Policy Studies (CEPS) 2009. 20   For an analysis of the legal elements of the final text of this Directive see A. Baldaccini, ‘The Return and Removal of Irregular Migrants under EU Law: an Analysis of the Returns Directive’, European Journal of Migration and Law 11/1 (2009), p. 1–17. See also F. Lutz, The Negotiations on the Returns Directive, Nijmegen: Wolf Legal Publishers 2010. 21   COM (2005) 391 final. 22   OJ 2001 L 149/34. 23   OJ 2004 L 60/55. 17

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application of Directive 2001/40. Also, in the context of cooperation in the field of return, it is important to mention Council Directive 2003/110 on assistance in cases of transit for the purposes of removal by air.24 Adopted under a German initiative it provided for a set of rules aimed at facilitating the transit of persons subject to removal in an airport of a Member State other than the Member State which had adopted the removal decision. Along the same lines, and following an Italian initiative, the Council adopted Council Decision 2004/573 on the organisation of joint flights for removals from the territory of two or more Member States of third-country nationals who are subject to individual removal orders.25 It addressed the identification of common and specific tasks of the authorities responsible for organising or participating in these operations. In parallel to this legislative process, the Commission presented in 2001 its Communication on a Common Policy on Illegal Immigration.26 In this document the Commission advocated for a common return policy as one of the main possible actions to prevent and fight against irregular migration. One year later, the Commission presented its Green Paper on a Community Return Policy on Illegal Residents,27 in which it elaborated further on the same issue launching a discussion with all the relevant stakeholders. The results of this public consultation were presented in the 2002 Commission Communication on a Community Return Policy on Illegal Residents.28 The Commission highlighted that: The effectiveness of Community action for return of illegal residents is therefore an essential aspect for the credibility of any policy for fighting illegal immigration. But for it to be fully effective, it must fit smoothly into a genuine management of migration issues, requiring crystal-clear consolidation of legal immigration channels and of the situation of legal immigrants…29

Against this background, the Council adopted its Return Action Programme of 28 November 2002 in which the Council stressed the need for enhanced cooperation among Member States. Finally, the European Council of November 2004 held in Brussels adopted  the Hague Programme. The European Council emphasized the need  “for the establishment of an effective removal and repatriation policy

  OJ 2003 L 321/26.   OJ 2004 L 261/28. 26   COM (2001) 672 final. 27   COM (2002) 175 final. 28   COM (2002) 564 final. 29   Ibid., p. 4. 24 25

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based on common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity”.30 To that end it called the Commission to submit a proposal in 2005. On 1 September 2005 the Commission addressed this mandate and presented the Proposal for a Return Directive. The proposal was sent to both the Council and the Parliament, in accordance with the co-decision procedure. A  brief explanation of how this procedure works in practice is necessary before moving forward. 3.  Co-decision in Theory and in Practice As mentioned before, co-decision is the procedure that has applied to the field of undocumented migration since the beginning of 2005. It is important to understand how co-decision works in practice, since it is quite different from the theory. The theory under Article 251 of the Treaty can be explained as follows: The Commission sends a proposal to both the Council and the Parliament which act as co-legislators. Then, the Parliament will adopt an opinion and the Council will either approve the act, by endorsing the amendments contained in the Parliament’s opinion, or it will adopt a common position. This is known as ‘first reading’. If the Council adopts a common position the Parliament can then make amendments to it, which the Council can then accept or reject, in the ‘second reading’. If there is no agreement, a Conciliation Committee will be set up with equal numbers of Council representatives and MEPs. The agreed text by the Conciliation Committee will be voted on by qualified majority in the Council and by a majority of members in the Parliament.31 The reality though is fairly different, owing to the institutionalisation of ‘trilogues’. There are two different kinds of ‘trilogues’. The so-called formal ones instigate the meetings of the Conciliation committee mentioned before. They take place between representatives of the Council, Commission and Parliament. However, those which are of interest for this article are the second ones: the informal ‘trilogues’. These ‘trilogues’ take place behind closed doors and try to find an ‘early agreement’ between the Council and the Parliament to arrive at ‘first reading’ compromises. Before the Amsterdam Treaty, legislation passed under the co-decision procedure could only be adopted at ‘second reading’. However, after Amsterdam, it has become possible to conclude it at   Brussels European Council Conclusions, 45 November 2004, p. 23.   For a concise account of the co-decision procedure see P. Craig and G. de Búrca, EU Law. Text, Cases and Materials (Oxford: Oxford University Press, 2008 (fourth ed) ), p. 113–117.

30 31

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‘first reading’.32 The main trouble with these kinds of ‘trilogues’ is that the negotiations are extremely informal, which leads to an enhancement of efficiency “at the expense of accountability”.33 Due to the informal nature of the process, it was originally only intended for topics which were not contentious. Nevertheless, “it has increasingly been expanded to non-technical and politically salient dossiers which have some degree of urgency”.34 This kind of procedure has a negative impact on the transparency of the whole process. It is usually the Parliament’s rapporteur who negotiates with the Council’s Presidency, in the presence of the Commission’s representative. The process is opaque, to the point where sometimes not even the shadow rapporteurs from the Parliament are invited to the meetings, or when they are invited they often cannot take the stand. This obviously gives greater influencing power to the Council’s Presidency and to the Parliament’s rapporteur.35 This is contrary to the principle of openness and visibility of proceedings that governs the work of the European Parliament. In fact, all the debates surrounding the adoption of an opinion on a Commission proposal are public.36 The MEP rapporteur presents a draft report and the discussion, amendments and the voting have a great degree of transparency. However, the decisions adopted under the ‘trilogues’ are not easily available. Moreover, when that ‘early agreement’ arrives to the Parliament, the Parliament’s plenary tends not to change anything as it runs the risk that the Council will decide not to go on with the process or that it will adopt a tougher position in the negotiations as a consequence. It seems however that this process will continue to be the favoured process as the Parliament, the Council and the Commission signed a Joint Declaration on Practical Arrangements for the Co-decision Procedure37 to clarify these working methods and the practical arrangements for pursuing them.38   A. Rasmussen and M. Shackleton, The Scope for Action of European Parliament Negotiators in the Legislative Process: Lessons of the Past and for the Future, Paper prepared for the Ninth Biennial International Conference of the European Union Studies Association, Austin, Texas, March 31-April 2, 2005, at p 1–2. See Article 251(2) of the Amsterdam Treaty compared with Article 189b(2) of the Maastricht Treaty. 33   H. Farrell and A. Héritier, The Invisible Transformation of Codecision: Problems of Democratic Legitimacy, SIEPS (Swedish Institute for European Policy Studies) Report No. 7, June 2003, p. 8–9. 34   Ibid, p. 24. 35   A. Rasmussen and M. Shackleton, op.cit., p. 2. 36   R. Corbett, F. Jacobs and M. Shackleton, The European Parliament, London: John Harper Publishing 2007 (7th edition), p. 331–335. 37   Council document 7061/07 of 9 March 2007. 38   For a critical analysis of the document see T. Bunyan, ‘Statewatch viewpoint. Secret Trilogues and the Democratic Deficit’, September 2007, http://www.statewatch.org/analyses/no-64 -secret-trilogues.pdf. 32

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This was the procedure used in the negotiation of the Return Directive. The different steps in that negotiation process will be analysed in the following paragraphs. 4.  The Process of Adoption of the Directive 4.1.  The Commission Proposal As already mentioned, on 1 September 2005 the Commission presented the Proposal for a Returns Directive. My intention here is not to give an in depth explanation of all the elements present in the proposal. On the contrary, I will limit myself to an enumeration of the points that were the most contentious in the negotiations. These controversial matters will serve as a thread for the subsequent explanation of the negotiations and of the different positions of the three institutions.39 The main elements of the original Commission proposal can be summarised as follows: 1. Scope: The Directive was applicable to any illegally staying third country national regardless of the reason of the illegality of the stay. Member States could decide not to apply the Directive to third-country nationals who were refused entry in a transit zone of a Member State. In case they decided not to apply it to this category of third-country nationals, Member States still had to ensure a certain level of protection for these people.40 Therefore, the discussions that followed revolved around two main questions: (i) Who were the third-country nationals covered by the Directive and who were not? (ii) What was the protection granted, if any, to those not included in the scope? 2. Voluntary departure: The proposal prioritised the voluntary return of the third-country national, with a period of up to four weeks, unless there were reasons to believe that the person concerned could abscond during that period.41 This raised two main issues in the subsequent negotiations:

  For a detailed analysis of the changes during the negotiations, see the various Statewatch articles by Steve Peers, particularly those of January 2008 (http://www.statewatch.org/analyses/ eu-ret-dir-sp.pdf), April 2008 (http://www.statewatch.org/analyses/eu-returns-analysis-mar -08.pdf) and June 2008 (http://www.statewatch.org/news/2008/jun/eu-analysis-returns -directive-june-2008-final.pdf). 40   Art. 2 of the proposal. 41   Art. 6(2) of the proposal. 39

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(i) How long should the period for voluntary departure be? (ii) What were the reasons to deny such a period? 3. Re-entry ban: It provided for the introduction of a re-entry ban which would normally not exceed five years except in cases of a serious threat to public policy or public security. There were different circumstances which had to be taken into account when deciding the length of the re-entry ban.42 Additionally there were some cases in which a re-entry ban could be withdrawn.43 Thus, the questions were: (i) For how long should the re-entry ban be imposed? (ii) What were the cases in which a re-entry ban should not be imposed or withdrawn? 4. Remedies: It granted the right to an effective judicial remedy with suspensive effect against a return decision or a removal order. Legal aid had to be made available to those who lacked sufficient resources.44 The issues in this point included the following: (i) Was it necessary to have a judicial remedy and if so, should it have suspensive effect? (ii) Was there any obligation imposed on Member States to ensure legal aid for those lacking sufficient resources? 5. Detention: It envisaged limiting the use of temporary custody.45 However, it would be compulsory for the Member State to keep a third-country national under temporary custody if there was a risk of absconding and other less coercive measures were not sufficient. These measures had to be applied taking into account the principle of proportionality. Temporary custody orders had to be issued by the judicial authorities or controlled by them within 72 hours in case of an issuance by an administrative authority. Administrative authorities should only issue custody orders in urgent cases though. The maximum limit was established as six months and it must be reviewed by a judicial authority at least once a month.46 Con­ sequently, the discussions centred on the following issues: (i) What were the circumstances used to determine the detention of a third-country   Article 9(1) and (2) of the proposal. These circumstances were, according to Article 9(2), applicable when ‘the third-country national concerned: (a) is the subject of the removal order for the first time; (b) has already been the subject of more than one removal order; (c) entered the Member State during a re-entry ban; (d) constitutes a threat to public policy or public security.’ 43   According to Article 9(3) these cases were when the third-country national concerned (a) is the subject of a return decision or a removal order for the first time; (b) has reported back to a consular post of a Member State; (c) has reimbursed all costs of his previous return procedure. 44   Article 12 of the proposal. 45   The Commission proposal named detention as temporary custody. 46   Article 14 of the proposal. 42

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national? (ii) What controls should Member States put in place in case of detention ordered by an administrative authority? (iii) What was the maximum period of time that a third-country national could be deprived of his/ her freedom? 6. Unaccompanied minors: It provided for certain extra guarantees when the subject of the return decision was a minor, taking account of the best interest of the child in accordance with the 1989 United Nations Convention on the Rights of the Child.47 For example, minors could not be kept in common prison accommodation.48 Hence, the main debate in this area focused on the type of special treatment that minors should receive, if at all. The proposal was sent to the Council and to the European Parliament which started a parallel process of discussion in the relevant organs in each institution. In the case of the Parliament, the responsible Committee was Civil Liberties, Justice and Home Affairs. Matters were also discussed in the Committee on Development and in the Committee on Foreign Affairs which produced their own opinions. With regards to the Council, the proposal arrived first to the relevant working party before it went up the ladder to SCIFA,49 COREPER II and, eventually, the Ministers responsible. It is also important to mention the role played by the JHA Counsellors. These are national officials, attached to the national Permanent Representation who are called upon to intervene at various stages of the process, mainly “on an ad hoc basis”.50 Another relevant consideration to bring up is the central role that the Council Presidency played in the importance that was allocated to this legislative proposal. The Council Presidency has the ability to set the agenda by structuring it and by leaving aside those issues in which it is not interested.51 That is the reason why during the German Presidency in the first half of 2007 there was no significant development with regards to this Directive as we will see below. 4.2.  The Finnish Presidency The Council’s Working Party on Migration and Expulsion/ Mixed Committee of the EU-Iceland/Norway/Switzerland had a series of meetings from the end

  See Article 5 of the proposal.   Article 15(3) of the proposal. 49   Strategic Committee for Immigration, Frontiers and Asylum. 50   See G. Papagianni, op.cit., p. 223–224. 51   See on this, J. Talberg, ‘The Agenda-shaping Powers of the EU Council Presidency’, Journal of European Public Policy 10/1 (2003), p. 1–19. 47 48

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of 2005 until the end of 2006.52 During the Finnish Presidency in the second semester of 2006, between October and November, a series of compromise proposals were put forward.53 Member States’ discussions in the relevant Working Party tended towards a dilution of the relevant provisions with an increase of the prerogatives that Member States could keep. At this stage the fiercest opponents to some of the guarantees contained in the Commission proposal were the UK, the Netherlands, Germany and Greece although many other Member States had different issues with the proposed text, while Finland acted as the only positive discussant.54 Despite the Finnish good intentions, the text offered by the Presidency weakened many of the guarantees present in the Commission proposal. With regards to the scope, Member States were able to “continue to apply the existing national law regarding procedures on removal at the border”.55 As a result, the scope of the Directive was limited. With regards to the period of voluntary return, the Finnish compromise remained similar to the Commission proposal, except for the inclusion of a derogation providing for the possibility of the restriction of the period of voluntary departure if the person concerned posed a risk to public security, public order or national security.56 Thus, it increased from one to two the scenarios in which a third-country national could be refused a period of voluntary departure. This Article in particular received a lot of objections from different Member States who wanted to restrict the option of a voluntary departure even more.57 With reference to the re-entry bans, the Finnish compromise went further by including a greater number of reasons to impose a re-entry ban. However, many Member States were still not satisfied with the compromise.58 The remedies were also restricted. In particular, the right to an effective remedy could be fulfilled not only before a court but also before “other competent authority or body composed of members who are impartial and who enjoy safeguards of independence”.59 Hence, the remedy was no longer only judicial. The possibility of a

  EC documents 14814/05, 6008/06, 10002/06, 11051/06, 11456/06 (inter-institutional files).   Documents 13451/06 (Presidency compromise suggestions on Articles 1–10, 6.10.06), and 15165/1/06 REV 1 (Presidency compromise suggestions on Articles 11–22, 15.11.06). 54   See F.Weber, ‘The Original EU Directive on return (expulsion)’ Statewatch analysis, http:// www.statewatch.org/news/2007/apr/eu-expulsion-sw-analysis-I.pdf. 55   Article 3(2) of the Finnish Presidency compromise suggestions. 56   Article 6(2) of the Finnish Presidency compromise suggestions. 57   F. Weber, op.cit., p. 7. 58   Ibid., p. 9. 59   Article 12(1) of the Finnish Presidency compromise suggestions. 52 53

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suspensive effect was kept. However, the legal aid was constrained as thirdcountry nationals could not enjoy a better treatment than that accorded to nationals.60 In that way, third-country nationals could not obtain free legal aid in those Member States which do not grant it to their own nationals. Again, many Member States were dissatisfied with these solutions and preferred a harder position.61 With reference to the detention proviso, it was extended to cases in which there was a risk of “avoiding or hampering the removal process”.62 This drafting has been carried through to the final version of the Directive. The temporary custody orders could be habitually issued by administrative authorities, and not only reserved for urgent cases, like in the Commission proposal. However, they had to be subject to judicial review within 48 hours.63 The maximum detention limit was established as between four and eight months, although it was extendable in cases in which the removal operation was “likely to last longer due to a lack of cooperation of the third-country national concerned or due to delays in obtaining the necessary documentation from third countries.”64 Like before, this wording has also remained in the final version of the Directive. Finally, the situation of minors remained similar apart from the fact that the reference to the Convention on the Rights of the Child was erased from Article 5. In summary, the Finnish Presidency compromise restricted the rights of third-country nationals and gave a free hand to Member States in various situations. However, it was a better agreement than the one put forward by the German Presidency. 4.3.  The German Presidency In February 2007, the German Presidency of the European Council sent a note to the SCIFA with its views on how the Directive should be.65 The German Presidency acknowledged that during the first round of discussions, under the Finnish Presidency, in the Working Party on Migration and Expulsion there had been many disagreements. Hence, it proposed a first phase of Community harmonisation in some areas, while leaving some other areas to be harmonised only in the long term. Put in basic terms, the German Presidency wanted to drain the proposal of all its significance.   Article 12(3) of the Finnish Presidency compromise suggestions.   F. Weber, op.cit., p. 9–10. 62   Article 14(1) of the Finnish Presidency compromise suggestions. 63   Article 14(2) of the Finnish Presidency compromise suggestions. 64   Article 14(4) of the Finnish Presidency compromise suggestions. 65   Council Document 6624/07. 60 61

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With regards to the scope, the German Proposal restated the Finnish position that the Directive should not be applicable to cases of non-admission at the border.66 The voluntary departure period should be left to the discretion of the Member States’ authorities.67 Moreover, the possibility of a re-entry ban was left entirely in the hands of the Member States who could impose an indefinite one if they so wished.68 The procedural safeguards were consistently limited as well. The prospect of a legal remedy, the possibility to be granted legal aid and the option of a suspensive effect were left to be governed by Member States’ own national law.69 Detention could be ordered for up to six months and extended by up to twelve months. It could be ordered in the same cases as in the Finnish compromise: risk of absconding and cases where enforcement of a removal order was obstructed. Both the legal safeguards and the review of the detention should be governed by Member States’ own national law.70 Finally, there was no reference to the situation of minors. It is obvious that the German Government was not interested in achieving harmonisation at this stage. That is why the negotiations were at a standstill until the subsequent Portuguese Presidency. In the meantime, the European Parliament was continuing with its own debates in 2007 and produced an opinion in the second semester of 2007. 4.4.  The European Parliament’s Opinion and the Portuguese Presidency The European Parliament reached an initial position by adopting a report by the Parliament’s Civil Liberties Committee on 12 September 2007. Both the Committee on Development and the Committee on Foreign Affairs had adopted opinions as well.71 The reports in the three different committees were voted for in favour by almost unanimity of the MEPs.72 The proposals improved the Commission original draft in many aspects. The report was not voted on in the plenary as negotiations started with the Council through informal meetings (trilogues) in November 2007 to try to reach a

  Ibid., p. 6.   Ibid., p. 3. 68   Ibid., p. 4. 69   Ibid., p. 4. 70   Ibid., p. 5. 71   The opinion of the Committee on Development was adopted on 5 June 2007 whereas the one from the Committee on Foreign Affairs was adopted on 25 April 2006. 72   The result of the final vote in the Civil Liberties Committee was 47 in favour and 5 against. In the Committee on Development it was 22 in favour with 3 abstentions whereas in the Committee on Foreign Affairs it was 41 in favour, 4 against and 3 abstentions. 66 67

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‘first-reading’ agreement.73 In turn, the Council had a meeting on 21 November at SCIFA level. The Portuguese presidency presented the results of the discussions on 7 December 2007.74 It is interesting to consider both the position of the Council and of the Parliament by the end of 2007 at the same time. In that way, it is easier to follow the negotiations that came afterwards. The issue of the scope of the Directive highlighted a very clear initial divergence in the positions of both institutions. The Parliament’s position was in keeping with the Commission proposal although it included the possibility to exclude not only third-country nationals refused entry in a transit zone but also those refused entry at the border. As in the Commission proposal, there were basic standards that had to be applicable to these third-country nationals.75 In contrast, the Council’s position was much more restrictive as Member States could decide to exclude from the scope of the Directive large categories of third-country nationals.76 There were no basic standards applicable to these categories of third-country nationals excluded from the scope of the Directive. The period of voluntary departure was another contentious issue. Whereas the European Parliament amended the Commission proposal to grant a period of at least four weeks,77 the Council provided for a maximum period of up to 30 days but only following an application by the third-country national concerned.78 However, the reasons why a third-country national should not be granted a period of voluntary departure were similar in both institutions and coincided with the Finnish Presidency proposal. With regards to the re-entry ban, the European Parliament made it optional. In addition to that, re-entry bans longer than five years could only be imposed

  It is important to mention that the European Commission made special emphasis during the negotiations on the ‘20 Guidelines on forced return’, a Council of Europe instrument. Member States had endorsed it and committed themselves- politically but not legally- to comply with it. See, ‘Twenty Guidelines of the Committee of Ministers of Europe on Forced Return’, September 2005. 74   Council document 15566/07. 75   Article 2(2) of the Parliament’s report. 76   The new third-country nationals included were those subject to return as a criminal law sanction or as a consequence of a criminal law sanctions, subject to extradition procedures and to those subject to a refusal on entry, in accordance with Article 13 of the Schengen Borders Code, or who are intercepted at, or in the vicinity of the external border of the Member States while trying to enter or are apprehended in circumstances where there are reasons to believe that they have illegally entered within a period of no more than 72 hours the territory of the Member States. Article 2(2) of the Portuguese Presidency document. 77   Article 6(2) of the Parliament’s report. 78   Article 6(a) of the Portuguese Presidency document. 73

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on those third-country nationals which represented a proven threat. It also added some cases in which a re-entry ban might be withdrawn.79 In sharp contrast, the Council’s version made the re-entry ban compulsory. The length of the ban should not exceed five years in principle, although there were countries such as Denmark which wanted a lifelong ban. Moreover, in order to make it easier to impose a longer ban it was only necessary to show that the third-country national represented a threat (and not a serious or proven one as in the Commission’s and Parliament’s proposals respectively). Member States could refrain from imposing the entry ban, withdraw it or suspend it at their discretion.80 The procedural rights in both versions represented another point of clear disparity. While the Parliament extended the right to an effective judicial remedy to appeal against temporary custody orders or re-entry bans,81 the Council kept the same solution as under the Finnish presidency,82 adding that legal aid could only be made available in accordance with national legislation. With reference to detention, the European Parliament made it optional. If a custody order was issued by an administrative authority it had to be reviewed by judicial authorities within 48 hours from the beginning of the custody and a person could be detained for up to three months. However, Member States could shorten or extend that period up to 18 months in cases in which the operation would be likely to last longer due to a lack of cooperation on the part of the third-country national or due to delays in obtaining the necessary documentation from third-countries. The custody had to cease in the event of removal becoming impossible.83 The Council’s position was much tougher. Detention was an obligation where it was necessary to prepare the return and/ or carry out the removal process unless other sufficient but less coercive measures could be applied. Hence, third-country nationals could be detained even if there was no risk of absconding. Detention could be ordered by both administrative and judicial authorities and the lawfulness of the detention should be subject to a speedy judicial review, in accordance with national law. Detention could be prolonged indefinitely although there should be reviews at reasonable intervals of time. Some Member States, such as Cyprus or Latvia wanted even tougher measures. Others, such as Finland or Italy preferred a less restrictive approach, although even their positions were very far away from those of the Parliament.   Article 9(3) of the Parliament’s report.   Article 9 of the Portuguese Presidency document. 81   Article 12 of the Parliament’s report. 82   See above Section 4.2. 83   Article 14 of the Parliament’s report. 79 80

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Finally, regarding the situation of minors, the Parliament introduced a whole new Article dealing with them. In brief, they were to be provided with accommodation in institutions equipped with the personnel and facilities which would take into account the needs of persons of their age. Likewise, minors should have the right to education and leisure.84 Moreover, a further point was introduced to Article 5 by which unaccompanied minors should not be removed or detained. The Council was content to state that minors should be kept in special detention facilities and that they had to be kept separate from adults. 4.5.  The Initial Phase of the Negotiations during 2008 In the beginning of 2008, there were a series of trilogues between the Slovenian Presidency, the Commission and the European Parliament’s Rapporteur, Manfred Weber. Following these negotiations, the Presidency submitted draft compromise texts which were considered by the JHA Counsellors. The result of the negotiations was presented by the Presidency in a document sent to the Permanent Representative Committee (COREPER) on 15 February 2008.85 This document was examined by the COREPER (Mixed Committee at the Level of Senior Officials with Iceland/Norway/Switzerland) and the Council (Mixed Committee at Ministerial Level) on 20 February and 28 February respectively. Following these meetings, the JHA Counsellors met on 7 March 2008 in order to discuss compromise solutions submitted by the Presidency. Later, on 19 March 2008, the COREPER at Senior Level examined certain important issues. On the basis of that discussion, the Presidency submitted further suggestions with a view to examining them during the meeting of the JHA Counsellors to be held on 28 March 2008.86 In the meantime, a series of informal trilogues with the European Parliament took place. It is interesting to analyse the position of the Council as it stood at the end of March 2008, as many of the important issues were already decided at this point. With regards to the scope, Article 2 was revised to widen the scope of those who were not be covered by the Directive. In the new version, Member States had the option not to apply the Directive to any third-country national who irregularly entered the territory of a Member State, unless that third-country national consequently obtained an authorisation or a right to stay in that Member State. This is very close to the version that has been kept in the final

  Article 15(a) of the Parliament’s report.   Council document 6541/08. 86   Council document 7774/08. 84 85

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Directive.87 Consequently, it departs dramatically from the Parliament’s position which sought to apply the Directive to any third-country national, except those refused entry at the border or the transit zone. In a move towards the European Parliament’s and the Commission’s position, the Council accepted for the first time that those third-country nationals not covered by the Directive would at least have a minimum protection according to a new added Article 4(4).88 This has also remained in the final version of the text. Hence, the scope of the Directive was finally agreed upon at this stage with a clear inclination towards the position of the Council. The period of voluntary departure established by the Council in this version was also very close to the final version of the Directive. There were minor changes with regards to the previous December version, some of which were positive and some negative. A return decision had to provide for an appropriate period for voluntary departure ranging between seven and thirty days. However, Member States could provide in their national legislation that such a period had only to be granted following an application. In that case, they had to inform the third-country national concerned. This has remained exactly the same in the final version. Member States could also decide89 to extend this period, following a non exhaustive list of circumstances. Finally, the Council added a new reason by which a period of voluntary departure should not be granted:90 When the third-country national’s application for a legal stay is found to be unfounded91 or based on fraud, Member States could decide not to grant this period. This has also endured in the final version. Thus, the period of voluntary departure and the reasons not to grant such a period were finally decided at this point with a clear tendency towards the Council’s interest. The re-entry ban issue was also solved at this stage. The compromise text provided for an obligation on Member States to make a return decision accompanied by a re-entry ban if no period of voluntary departure had been   Article 2(2)(a) of the final version reads as follows: ‘Member States may decide not to apply this Directive to third-country nationals who: (a) …are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State’. This would suggest a slightly narrower interpretation of the category of irregular migrants excluded from its scope. 88   See on this Article 4(4), Anneliese Baldaccini, op.cit. 89   It has been re-written as ‘shall’ decide in the final version, adding, however, ‘when this is necessary’. 90   Before this version there were only two possible reasons: risk of absconding or risk to public security, public order or national security. 91   It has been re-written as ‘manifestly unfounded’ in the final version. 87

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granted or if the requirement to return had not been complied with. In other situation Member States were not obliged to impose a re-entry ban but they had the possibility to do so. When a third-country national had complied with the return decision Member States had to consider withdrawing or suspending the ban. Moreover, when a third-country national was the victim of human trafficking,92 an entry ban could not be imposed. The solution that the Council gave at this stage to the issue of remedies was almost the same as in the final version. The right to an effective remedy followed the same logic that had already been suggested under the Finnish Presidency. Therefore, an appeal was possible before a competent judicial or administrative authority or a competent body composed of members who were impartial and who enjoyed safeguards of independence. This is now the wording of the final Directive and is far removed from the Parliament’s and the Commission’s position. With regards to the second point within the issue of remedies, the possibility to obtain a suspensive effect, the Council adopted the solution that had already been presented under the Portuguese Presidency and which has also been adopted in the final Directive. Specifically, the authority or body mentioned before had to have the power to temporarily suspend the enforcement of the return decision. This was different from the suspensive effect of the judicial remedy that the Commission and the Parliament defended. With the new formulation of this Article, suspensive effect is an option but it is not compulsory. With regards to the third point, the free legal aid, the Council maintained at this point the Portuguese compromise of making it available in accordance with national law. This has slightly changed in the final version due to opposition from the Parliament. The situation with regards to detention was also almost solved at this stage. Considering the first issue, the circumstances under which a third-country national could be detained, the Council enumerated two: detention is possible, although not compulsory, when there was a risk of absconding or when the third-country national concerned avoided or hampered the preparation of return or the removal process. This was a move towards the Parliament’s position and it has been upheld in the final version of the Directive. Considering the detention ordered by administrative authorities, Member States decided to provide for judicial review to be decided expeditiously from the beginning of the detention. This has remained in the final version of the Directive and is far removed from the 48 hours in the Parliament’s opinion. With regards to the length, in a concession to the Parliament’s position, the Council agreed to set

  The victim has to have been given a residence permit in accordance with Council Directive 2004/81 and has to cooperate with the competent authorities.

92

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the maximum limit at 18 months (6 months extendable by another 12 months in certain cases),93 rather than indefinite as in the previous version. One point in which the European Parliament was more successful in the negotiations was that of unaccompanied minors. Without arriving to the same level of protection envisaged by the Parliament, the Council agreed to add Article 15(a) by which minors had to have the possibility to engage in leisure activities and, depending on the length of their stay, access to education. However, Member States only had to provide accommodation in adequate institutions as far as possible. In that way, Member States still had considerable room for manoeuvre. This Article has remained in the final version. 4.6.  The Final Phase of the Negotiations during 2008 The JHA Counsellors examined the proposal, described in the point before, on 28 March 2008. Afterwards, the Presidency submitted further compromise suggestions on 1 April 2008.94 Those suggestions were in turn discussed by the Council (JHA) at its meeting on 18 April 2008. After a ‘trilogue’, which took place on 23 April 2008, a first compromise was finally reached by the Presidency with the European Parliament’s rapporteur. It was decided that this compromise would be tested by both institutions. To that end, the Presidency sent the compromise to the Permanent Representatives Committee on 25 April 2008.95 At this point, the main stumbling block between the Parliament and the Council was the granting of legal aid. However, after the compromise was discussed by the Committee on 7 May 2008, it became clear that many Member States opposed different aspects of the text. Only Luxembourg, the Netherlands, Spain and Sweden completely backed the agreement. The main discrepancies revolved around three issues: The Czech Republic, France and Hungary wanted a lesser period than the minimum of seven days for the voluntary return, various Member States wanted a longer re-entry ban than five years and Austria, Germany and Greece did not want to cover the cost of the free legal aid assistance. Consequently, the Presidency presented a new document96 in which legal aid could be given free of charge although this was not compulsory. The Permanent Representatives Committee discussed this Presidency compromise at its meeting on 21–22 May 2008. Following discussions and further   The European Parliament’s position was three months extendable up to eighteen in certain cases. 94   Council document 7919/08. 95   Council document 8148/08. 96   Council document 8812/08. 93

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negotiations with the Parliament, the Presidency submitted a new com­promise suggestion on 2 June with regards to Article 12(4),97 overcoming the obstacle posed by the Austrian, Greek and German opposition. The final compromise Article which appears in the final version of the Directive as Article 13(4) reads as follows: Member States shall ensure that necessary legal assistance and/or representation be granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid and may provide that free legal assistance and/or representation is subject to conditions as set out in Article 15(3)-(6) of Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status.

In brief, the compromise made it mandatory to provide free legal aid, albeit “in accordance with relevant national legislation or rules regarding legal aid” and with the “procedure directive” of 2005 on aid to asylum seekers. In order to make it more acceptable for the Member States, the Commission included a final statement underlining the possibility to use the Community Return Fund, set up for the period 2008–13 with funding of €676 million, to cofinance national action promoting the application of Article 12(4). This compromise was important for the ALDE group in the European Parliament in order to give support to the Directive. With this solution satisfying both sides, the text was politically endorsed by the Council on Thursday 5 June with a letter sent to the European Parliament. The European Parliament proceeded to put it to a plenary vote on 18 June 2008. 4.7.  The Voting in the Plenary of the European Parliament The compromise reached on the Directive was approved at first reading on 18 June.98 The Plenary adopted the compromise amendment which corresponded to what had been agreed between the Council and the Parliament’s rapporteur. In addition to this, the Greens/EFA group tabled eleven amendments, the GUE/NGL group tabled eight amendments and the PES group tabled ten, none of which was adopted. The draft Directive was adopted by 369 votes to 197, with 106 abstentions. Why did the European Parliament vote so clearly in favour of such a compromise which was so distant from its initial stance on the Directive? The motivations were, in my opinion, four:   Council document 9829/08.   The Directive was officially published on 24 December 2008. Member States had to implement it by 24 December 2010.

97 98

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Pragmatism: There was a certain agreement among the MEPs about the fact that the Directive was not perfect. Even the rapporteur recognised that reality. However, by examining the explanation of the votes in favour of the Directive and the debate the day before the voting, one can realise that some MEPs were of the idea that it was better to have a poor minimum consensus than no rules at all, that it was better to have some kind of common rules than nothing. It was acknowledged, even by those voting in favour, that it was a very modest first step. In that respect, the idea that the Directive would improve the situation in those Member States with less protection, notably with regards to the duration of detention which was in some cases indefinite, was a repeated argument.99 Added to this was the fact that Member States with better guarantees did not have any obligation to worsen their current situation and that the Council included a final political statement declaring that the implementation of the Directive should not be used in itself as a reason to justify the adoption of provisions less favourable to persons to whom it applies.100 Fear of the following French Presidency: Many MEPs thought that an antagonistic vote would have resulted in negative consequences since the subsequent Presidency would be likely to take a much tougher position on this Directive. In fact, during the debate at the European Parliament in Strasbourg the day before the voting, the Council’s representative, Slovenian Interior Minister Dragutin Mate, warned that for many Member States the compromise was barely acceptable and that in case there was no ‘first-reading’ agreement, some states would seek to introduce tougher measures at ‘second reading’. Hence, he advised the Parliament not to pass a single amendment.101 In that sense, the Council was also interested in the release of the European Return Fund102 to support the efforts made by Member States to improve the management of

  This argument is not so easily upheld. In fact, out of the eight countries which did not have a set limit of detention, two are not bound by this Directive (Denmark and the United Kingdom) and three more (Finland, the Netherlands and Sweden) never detained people for such a long period. There were only some cases of detention longer than 18 months in Bulgaria, Cyprus and Estonia. See STEPS, The Conditions in Centres for Third Country Nationals (Detention Camps, Open Centres as well as Transit Centres and Transit Zones) with a Particular Focus on Provisions and Facilities for Persons with Special Needs in the 25 EU Member States, Brussels: European Parliament Committee on Civil Liberties, Justice and Home Affairs 2007. 100   The strength of these kinds of statements is dubious as will be seen below. 101   See European Parliament press release, ‘Return Directive debate: political groups hold different positions ahead of vote’, 17-06–2008. 102   Decision 575/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the European Return Fund for the period 2008 to 2013 as part of the General Programme ‘Solidarity and Management of Migration Flows’, OJ 2007 L 144/45.     99

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return. The European Parliament had decided in an amendment to the 2008 budget to put the whole amount in reserve and only to release it once a Directive would have been adopted.103 Hence the importance of a speedy approval of the Directive. Pressure from the respective national governments: With the increase in powers of the European Parliament, national governments may have seen it as an opportunity to encourage their own MEPs to vote in favour of their position in the Council.104 This is probably what happened for instance with the Spanish Socialist MEPs who voted almost unanimously105 in favour of the Directive even if the rest of their group voted against.106 Procedural constraints: In order to adopt a Directive the Parliament needs a simple majority at first reading. However, at second reading it requires an absolute majority. Therefore, compromises are more easily approved at first reading and that “can increase the pressure on the plenary not to use its formal power and table an amendment to the first reading compromise, which may not have sufficient support behind it to win an absolute majority”.107 Moreover, certain MEPs desired to draw a line under this topic knowing that there will be a new Parliament elected in 2009. This was important since the closer the date of the elections, the more difficult it becomes to arrive at a controversial compromise as many MEPs would be facing re-election soon. 5.  Recent Developments regarding the Implementation and Interpretation of the Directive Since the official publication of the Directive in December 2008, Member States had two years to transpose it into their national legal orders. In this Section I will briefly look at how some Member States are implementing the Directive, notably the length of detention before expulsion. I will then succinctly scrutinise the ruling in Kadzoev regarding this issue.

 Budget 2008, Document 12 Volume 2 page 59 (Budgetary line 18 03 10). http://www .europarl. europa.eu/comparl/budg/budg2008/procedure/procedure_en.htm#Doc12. 104   H. Farrell and A. Héritier, op.cit., p. 9. 105   Only two Spanish Socialist MEPs voted against (Josep Borrell and Raimon Obiols) with one abstaining (Martí Grau). 106   The Socialist Spanish Government was in favour of the Directive because of the same reasons mentioned for some MEPs: it will give some rights in countries where they were lacking without imposing the obligation to downgrade better standards where they were available. 107   A. Rasmussen and M. Shackleton, op.cit., p. 17. 103

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5.1.  Implementation of the Directive in some Member States Member States should have implemented the Directive by 24 December 2010. I will very briefly refer to how this process is taking place in Spain, Italy108 Greece and France. In Spain, the Directive has been partly implemented by the Organic Law 2/2009109 which modifies Organic Law 4/2000. The implementing legislation has extended the maximum detention period from the previous 40 days to 60 (Article 62(2) ). The implementation has also introduced a period for voluntary departure in its Article 63(bis) which establishes a new procedure for expulsion known as ‘procedimiento ordinario’. This formula includes a period of voluntary departure of between 7 and 30 days which may be extended taking into account the personal circumstances of the migrant in an irregular situation (Article 63(bis)(2) ). Moreover, this process excludes the possibility of detention (Article 63(bis)(3) ). The procedure will not apply when there is the risk of absconding by the migrant or when he or she obstructs the expulsion or when the migrant represents a threat for the public order, public security or national security (Article 63(1) ). Finally, with reference to the re-entry ban, the new Spanish legislation introduces a modification in order to comply with the Directive. The re-entry ban can only be extended up to 5 years, except in cases of a threat to public order, public or national security where it can be extended up to 10 years (Article 58). In addition to that, the new wording of the law explicitly forbids the imposition of a re-entry ban when the migrant has complied with the obligation to leave the country during the period for voluntary departure (Article 58(2) ). In Italy, the Directive has been partly implemented by a legislation which entered into force on 8 August 2009110 and which modifies the previous  See on Spain and Italy D.Acosta, ‘Migration and Borders in the European Union: The Implementation of the Returns Directive on Irregular Migrants in Spain and Italy’, in: Eduardo Zapata (ed.), Shaping the Normative Contours of the European Union: a MigrationBorder Framework, Barcelona: Cidob Foundation Edition 2010. 109   Ley Orgánica 2/2009, de 11 de diciembre, de reforma de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social. This law has to be further developed by a Reglamento (bylaw) which at the time of writing has not yet been officially published. 110   Law 15 July 2009, no. 94, Disposizioni in materia di sicurezza publica. See on this G. Savio, ‘Stranieri e diritto penale: non solo il reato di presenza illegale. Le altre modifiche introdotte  dalla l. 94/2009’, Diritto, Immigrazione e Cittadinanza 11/4 (2009), p. 59–84; P. Bonetti, ‘La proroga del trattenimento e i reati di ingresso o permanenza irregolare nel sistema del diritto degli stranieri: profili costituzionali e rapporti con la Direttiva comunitaria sui rimpatri’, Diritto, Immigrazione e Cittadinanza 11/4 (2009), p. 85–128; L. Pepino, 108

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‘Bossi-Fini’ Law.111 This new legislation is part of a broader package of legislative measures known as ‘security package’ (pacchetto sicurezza) which deals with the fight against terrorism and mafia activities among others. The new legislation only partly implements some elements of the Returns Directive. First, there is no period for voluntary departure. Second, the re-entry ban provision has not been modified and it can still be imposed for a period from 5 to 10 years. Both elements are in breach of the Directive. Third, the legislation lengthens the amount of time irregular migrants can spend in detention from 2 months to 6 months.112 In France, the new draft bill relating to immigration, integration and nationality includes the extension of the period of detention from 32 to 45 days.113 It also introduces a re-entry ban for a maximum period of 5 years,114 as well as a period for voluntary departure of up to 30 days.115 Finally, in Greece, the period of detention has also been increased from the previous 3 months to 12.116 A common element which may be highlighted in these cases is the extension of the maximum period of detention of an irregular migrant, which does not take into consideration the final political statement introduced by the Council to which I have referred above. 5.2.  The Recent Ruling in Kadzoev The Court of Justice of the European Union (CJEU) has already interpreted the Directive in its recent ruling in Kadzoev.117 The case concerned the interpretation of Articles 15(4) to 15(6) of the Directive. Mr Kadzoev was arrested on 21 October 2006 with no identity documents. He claimed to have been born in Grozny (Chechnya). On the following day an administrative measure of deportation was imposed on him and for that

‘Le migrazioni, il diritto, il nemico.Considerazioni a margine della legge n. 94/2009’, Diritto, Immigrazione e Cittadinanza 11/4 (2009), p. 9–20. 111   Law no. 189/2002. 112   See Article 14(5) as amended. 113   See Projet de Loi relatif à l’immigration, à l’intégration et à la nationalité, p. 10. This draft Bill had not yet been adopted at the time of revising this paper by 20 February 2011. 114   Ibid., p. 6. 115   Ibid., p. 6. 116   See Article 48 in Law 3772/2009, amending Article 76 of the Law on Migration 3386/2005. 117   Case C-357/09 PPU, Said Shamilovich Kadzoev (Huchbarov), ECR 2009 I-11189. See on this case E. Mincheva, ‘Case Report on Kadzoev, 30 November 2009’, European Journal of Migration and Law 12/3 (2009), p. 361–371.

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purpose he was placed at a detention centre on 3 November 2006. During the following two years, the Bulgarian authorities tried to obtain the authorization of the Russian administration to send Mr Kadzoev to Russia. However, the Russian authorities did not recognise him as having Russian nationality. Following that, on 12 March 2009, the Bulgarian Supreme Administrative Court considered Mr Kadzoev to be a stateless person. No other country agreed to receive Mr Kadzoev in its territory. This case brought up several questions regarding the interpretation of the Directive. The CJEU answered them to state several important points: First, the period of detention which a third-country national completed before the rules in the Directive become applicable must be included in the maximum period of detention of 18 months.118 Second, that maximum period of 18 months also includes the period during which the lawfulness of the removal decision was the subject of a judicial review.119 Third, when there are no reasonable prospects of removing a third-country national, the person concerned must be immediately released.120 This is clear for example, when the person concerned will not be admitted to a third-country.121 Finally, a person shall not be detained when the maximum period of detention has expired even if “he is not in possession of valid documents, his conduct is aggressive, and he has no means of supporting himself and not accommodation or means supplied by the Member State for that purpose”.122 This last point in the ruling opens very important questions regarding the situation of those third-country nationals who have been released after the maximum period of detention has expired and who cannot be expelled. Once released, the person will normally still be the subject of a return decision or removal order and Article 14 regarding safeguards pending return will apply. Member States may always, according to Article 6(4), issue a permit for a regular stay under national law. Once that permit will be granted, the person concerned will not be covered any more by the scope of the Directive. This is however a faculty that Member States have and not an obligation. The extent to which the obligation imposed on Member States by Article 15(4) of immediately releasing a third-country national whose detention ceases to be justified should entail the same third-country national to obtain some sort of regular residence status will be a matter of the utmost importance to assess the treatment of irregular migration.   Ibid., paragraph 39.   Ibid., paragraph 53. 120   Ibid., paragraph 63. 121   Ibid., paragraph 66. 122   Ibid., paragraph 68. 118 119

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6. Conclusions The European Union has received a tremendous amount of criticism for this Directive. Most of it has been addressed to the European Parliament. Is this criticism fair or is it misplaced? The positions of the Commission and Council are quite coherent with their previous involvement in migration regulation. The Commission has supported the final text because according to their view it still maintains added European value and it is fully compatible with human rights. The Council has followed its traditional restrictive position with some Member States pushing harder for a less open policy. This has been limited to a certain extent by the involvement of the European Parliament. However, in my opinion, the European Parliament has not done enough. It is true that it was the first important immigration instrument to be adopted under codecision. It is also true that without its involvement the Directive would have looked different and it would have been more restrictive. However, to defend the position that it is better to have something rather than nothing at all, is not a very convincing argument. Moreover, it is a dangerous signal for the future of the co-decision process in this area. If the European Parliament does not have the possibility to go to the ‘second reading’ because of its own incapacity or fear of the consequences in the Council, then the co-decision process can not be considered as a fair procedure among equal institutions. In that sense, the Council would retain a leading and prominent role. The European Parliament has however re-affirmed its position on 15 December 2010 by rejecting a first reading compromise on the “Single Permit Directive”.123 On the basis of this one could suggest that the critiques to the role of the Parliament in the adoption of the Returns Directive have been taken into account by a number of MEPs. The implementation of the Directive in some Member States seems to be in breach of the Directive. The European Commission will have to be alert in order to launch infringement proceedings in those cases where the Directive has been incorrectly implemented. Also the CJEU will play a leading role in interpreting the Directive and some of its most controversial provisions as it has done in Kadzoev.

  See Commission Proposal of 23 October 2007 for a Council Directive on a single application procedure for a single permit for Non-EU Member Country nationals to reside and work in the territory of a Member State and on a common set of rights for Non-EU Member Country workers legally residing in a Member State, COM (2007) 638 final, Brussels, 23.10.2007.

123

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To conclude, in answer to my question, is the European Parliament becoming bad and ugly? My response would be that the European Parliament is still more sympathetic than the Council towards migrant rights but its reputation as the ‘Good’ is now tarnished by its all-to-eager acceptance of a deficient piece of legislation. To make matters worse the European Parliament’s inability to seduce the Council leaves it in danger of becoming not only ‘bad’ but also ‘ugly’. Time will show whether the Parliament can reassert its virtuous position.

Detention of Foreigners Galina Cornelisse 1. Introduction All Member States of the European Union have provisions in their immigration legislation under which they can deprive aliens of their liberty. The use of immigration detention by these countries has greatly increased over the past ten years, a situation which is reflected in the development of European law. Ten years ago, European Union law was silent with regard to the detention of third country nationals, a matter which fell exclusively within Member States’ competence. Now, European refugee law authorises the detention of asylum seekers within the asylum procedure, and the recently adopted Returns Directive gives Member States the power to use detention in the deportation proceedings of third country nationals. In November 2009, the Court of Justice gave its first judgment concerning the use of immigration detention by a Member State, and doubtless more will follow in the near future. In a different legal context, albeit also European, the growth in the use of detention as a tool to deal with unwanted migration is mirrored in an increasing body of case law on immigration detention by the European Court of Human Rights (ECtHR) over the last few years. The focus of this chapter will be on the way in which this latter court deals with deprivations of liberty in an immigration context. When and under which circumstances does the Court in Strasbourg consider immigration detention a legitimate and lawful measure that states may employ in order to protect their borders? The exclusive focus on the lawfulness of the detention itself means that I shall not address the procedural guarantees, such as habeas corpus, that Article 5 also contains for individuals who are deprived of their liberty. This chapter is divided into 5 parts. First, I will treat some general aspects of Article 5 ECHR regarding the lawfulness of deprivations of liberty (Section 2). Subsequently, I investigate how the Court assesses the lawfulness of immigration detention in particular (Section 3). After that I will compare the Court’s approach to immigration detention with the protection offered to another category of individuals who may be deprived of their liberty under Article 5, namely persons of unsound mind, alcoholics or drug addicts and vagrants (Section 4). This comparison will bring to light serious inconsistencies and limitations in the Court’s assessment of immigration detention. I will argue that these shortcomings in the Strasbourg case law cannot be

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explained by a single cause, but that several structural factors play a role, the most important of which is a particular understanding of territorial sovereignty which has, until now, barely been challenged (Section 5). At last (section 6), I shall briefly pay attention to emerging law of the European Union on the detention of foreigners, as these norms may eventually compel the Member States to adhere to a more consistent understanding of the right to liberty in immigration procedures as a fundamental right. 2.  ‘Lawful’ Detention ‘in Accordance with a Procedure Prescribed

by Law’

The right to personal liberty is not absolute: the first paragraph of Article 5 provides an exhaustive list of six cases in which deprivation of liberty is permitted if certain conditions are met. These exceptions to the right to personal liberty should be narrowly interpreted.1 Article 5 § 1 ECHR: 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: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of an obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) 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.  See inter alia: Kaboulov v. Ukraine, 19 November 2009, Appl. No. 41015/04, § 129; and Quinn v. France, 22 March 1995, Series A No. 311, §42;

1

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Thus, according to the Convention, deprivation of liberty may only occur in accordance with a procedure prescribed by law. In addition, each of the six permissible cases of deprivation of liberty requires that the detention or arrest is ‘lawful’. The Court has illuminated the meaning of these notions in several of its judgments. ‘In accordance with a procedure prescribed by law’ is the narrower one – it refers mainly to domestic procedural laws and requires that the deprivation of liberty has a sufficient legal basis in domestic law.2 But as ‘the notion underlying the term in question is one of a fair and proper procedure’,3 it overlaps in certain areas with the more general term ‘lawful’. The latter notion covers substantive as well as procedural requirements. The Court generally considers the two concepts together, and the distinction between them is often blurred. Besides conformity with national laws, the domestic law which provides the legal basis for the detention and the deprivation of liberty itself need to be in conformity with the Convention, including the general principles expressed or implied therein as well as in light of the aim of the restrictions permitted by Article 5(1).4 Thus, the notion ‘lawful’, therewith including ‘in accordance with a procedure prescribed by law’ requires that any measure depriving the individual of his or her liberty is compatible with the purpose and core of the protection of Article 5, which consists in protecting the individual against arbitrariness.5 The notion of arbitrariness must be understood to include elements of inappropriateness, injustice, lack of predictability and due process of law.6 It is the prohibition of arbitrariness, which I shall refer to as ‘lawfulness in a broader sense’, that occupies a central place in my analysis of the significance of Article 5 in the specific context of immigration detention.

  Amuur v.France, 25 June 1996, Reports 1996-III, § 50; Sadaykov v. Bulgaria, 22 May 2008, Appl. No. 75157/01, § 23; Abdolkhani and Karimnia, §§ 125–135; and Z.N.S. v. Turkey, 19 January 2010, Appl. No. 21896/08, § 56. See also S.D. v Greece, 11 June 2009, Appl. No. 53541/07, § 59. 3   Winterwerp v. the Netherlands, 24 October 1979, Series A No. 33, §45. 4   Brogan and others v. the UK, 29 November 1989, Series A No. 145B, §65; Winterwerp v. the Netherlands, § 45; Erkalo v. the Netherlands 2 September 1998, Reports 1998-VI, §52. 5   See, for instance, Winterwerp v. the Netherlands, §§ 39 and 45; Bozano v. France, 18 December 1986, Series A No. 111, § 54; Bouamar v. Belgium, 29 February 1988, Series A No. 129, §47; Chahal v. the UK, 15 November 1996, Reports 1996-V, § 118; and Slivenko v. Latvia, 9 October 2003, Reports 2003-X, § 147. 6   Cf. Human Rights Committee in Mukong v. Cameroon, (1995) 2 International Human Rights Reports, 131 at. 9.8 and Van Alphen v. the Netherlands, Communication 305/1988. 2

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3.  Lawfulness of Immigration Detention ‘in a Broader Sense’ When analysing the Strasbourg case law, one can roughly distinguish between four aspects of the detention which seem to have a bearing on its ‘lawfulness’: the quality of the national laws authorising the detention; the conditions and place of detention; the underlying aim of the detention; and the duration of the detention. I start with the first two aspects in relation to immigration detention, because these elucidate how the Court gives concrete shape to some aforementioned aspects of the notion of arbitrariness, such as lack of predictability and inappropriateness. Subsequently, I will turn to the underlying aims of immigration. In the first place, I set out which aims are recognised as legitimate aims of immigration detention by Article 5(1) under f ECHR. Secondly, I will investigate when these aims justify resorting to detention in a concrete case. In other words, I will seek to answer the question how the Court assesses the relationship between means and end in this particular field – a fundamental question when it comes to human rights adjudication. The duration of the detention will be treated together with this latter question. 3.1.  Lack of Predictability and Inappropriateness as Elements of Arbitrariness In order to avoid all risk of arbitrariness, Article 5 requires that the national laws authorising detention are accessible to the person concerned, who should be able to foresee the consequences. Any deprivation of liberty that is authorised by legislation that is imprecise or vague violates Article 5.7 With regard to aliens’ legislation these quality requirements of foreseeability and accessibility gain extra weight, as this concerns people who are unfamiliar with the national laws.8 The manner of implementation or enforcement of the deprivation of liberty has to be appropriate in relation to the main ground of permitted deprivation of liberty relied on by the authorities. If the relationship between ground and implementation is absent, the Court will consider the detention arbitrary and thus unlawful.9 In light of this, it seems reasonable to hold that a deprivation of liberty under Article 5(1)(f) should not consist of more restrictions   For these requirements specifically with regard to immigration detention: Amuur v. France, § 50; Dougoz v. Greece, 6 March 2001, Reports 2001-II, § 55–57; Shamsa v. Poland, 27 November 2003, Appl. No. 45355/99, §57. Kaboulov v Ukraine, § 136 and 140. 8   Amuur v. France, §50; Rashed v Czech Republic, 27 November 2008, Appl. No. 298/07; and Rusu v Austria, 10 February 2008, Appl. No. 34082/02. 9   Ashingdane v. United Kingdom, 28 May 1985, Series A No. 93, § 44; Bouamar v. Belgium, 29 February 1988, series A-129, §§52–53. 7

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than necessary.10 Detaining asylum seekers and illegal immigrants in police cells or prison facilities, although questionable from a humanitarian viewpoint, will not per se be unlawful under Article 5(1)(f), although the Court has repeatedly held that conditions of immigration detention in countries such as Greece and Turkey constituted a breach of Article 3 of the Convention.11 Furthermore, if immigration detainees are obliged to follow the daily routine of the other prison inmates, a routine that is often characterised by punitive aspects, questions of lawfulness according to Article 5 may possibly arise. A clear example where the manner of implementation of immigration detention affected its lawfulness can be found in the Čonka judgment.12 In this case, the Belgian police had sent a notice to a number of rejected asylum seekers that required them to go to the police station. The notice stated that their attendance was needed to enable the files concerning their applications for asylum to be completed. At the police station however, they were served with an order to leave the territory, accompanied by a decision for their removal and their detention for that purpose and they were taken to a closed transit centre. The Court condemned the use of a ‘ruse’ whereby the authorities tried, by misleading asylum seekers, to gain their trust in order to arrest and subsequently deport them. Čonka gave concrete form to one aspect of the way in which the Court envisages the relationship between immigration detention and the specific manner of its implementation. That is to say, whereas the Court does not seem to exclude the use of stratagems in order to deprive criminals of their liberty, it did not deem it in accordance with the general principles embodied in the Convention if those stratagems were used to gain the trust of asylum seekers, irrespective of whether they are lawfully in the country or not, in order to arrest them.13 Other examples where the manner of implementation has played an important role in the Court’s judgment concern cases where children have been held in immigration detention. In 2006 the Court decided that Belgium had breached Article 5 by detaining an unaccompanied minor, Tabitha, in a detention centre for illegal immigrants under the same conditions as adults without any regard to her extremely vulnerable situation. A similar conclusion was reached by the Court in Muskhadzhiyeva, decided in 2009, where Belgium was again the respondent state. The difference with the Tabitha case was that   P. van Dijk and G.J.H. van Hoof, Theory and practice of the European Convention on Human Rights, Den Haag: Kluwer Law International 1998, at p. 364. 11  See S.D. v. Greece; A.A. v Greece, 22 July 2010, Appl. No. 12186/08; Tehrani v. Turkey, 13 April 2010, Appl. No. 32940/08; and Dougoz v. Greece. 12   Čonka v. Belgium, 5 February 2002, Reports 2002-I. 13   Ibid., § 42. 10

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the deprivation of liberty did not concern an unaccompanied minor, but four children that were detained together with their mother in a centre that did not take any account of their specific needs.14 In both cases, the detention of children in such conditions was also held to be in violation of Article 3 ECHR. In Tabitha, the detention was moreover deemed in violation of Article 8 of the Convention, as that measure had significantly and unnecessarily delayed Tabitha’s reunification with her mother. 3.2.  Article 18 ECHR and Legitimate Reasons for Immigration Detention The reasons that national states rely upon in order to deprive foreigners of their liberty under immigration legislation will impact upon the lawfulness of the detention as well. Article 18 ECHR prohibits using the restrictions that are permitted by the Convention to the rights guaranteed by it for any purpose other than for which they have been described. Indeed, the assertion by the Court that the list of exceptions to the right to liberty secured in Article 5(1) is an exhaustive one, and that only a narrow interpretation of those exceptions is consistent with the aim of that provision, would otherwise be meaningless. Article 5 only recognises two legitimate aims for detaining foreigners in immigration procedures. These consist in preventing unlawful entries and the carrying out of deportations. Thus, in deciding whether detention in a particular case complies with Article 5 of the Convention, the Court will first consider the question of whether the reasons for the arrest or detention were actually to prevent the foreigner to enter the country without authorisation, or to secure his deportation. This means that detention in cases where deportation is impossible is unlawful under Article 5. This is so, even if the impossibility of removal is due to the lack of cooperation on the part of the foreigner  – which is reasonable once it is understood that deportation is the forcible removal of an individual from a state’s territory.15 Clearly, detention with the aim of deterring other immigrants is unlawful. Nor should immigration detention be used for criminal law purposes such as criminal investigations or extradition.16 Although these observations may seem superfluous, they are worth emphasising in view of current political discourse,

  Muskhadzhiyeva v Belgium, 19 January 2010, Appl. No. 41442/07.  See Mikolenko v Estonia, 8 October 2009, Appl. No. 10664/05; and Louled Massoud v Malta. 27 July 2010, Appl. No. 24340/08. 16   Bozano v. France, §60, in which the Court declared Bozano’s deprivation of liberty unlawful because his deportation amounted to a disguised extradition. 14 15

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where immigration detention is increasingly portrayed as a response to normbreaking behaviour by undesirable individuals.17 The following section will investigate which conditions have to be met before regulation of entry and enforcing deportation justify depriving an individual of her liberty in an actual case. Just as the legitimate aims enumerated in Articles 8 to 11 do not constitute blanket justifications for interfering with the rights protected by these provisions, also in the case of immigration detention, constitutional adjudication needs to engage with the question of whether the state has struck a fair balance between pursuing the legitimate aims recognised by the Convention and the protection of the fundamental rights of the individual. 3.3.  When Do Regulating Immigration and Securing Deportation Justify Detention? Nevertheless, since its pronounced judgment in Chahal, we know that the Court, when reviewing the initial decision by the state to detain somebody who is to be deported, barely seems to perceive a difference between the question of what the Convention recognises as legitimate aims of immigration detention, and the subsequent question of when these aims justify detention in a concrete situation: Article 5 para. 1 (f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5(1)(f) provides a different level of protection from Article 5(1) (c). Indeed, all that is required under this provision is that ‘action is being taken with a view to deportation’. It is therefore immaterial, for the purposes of Article 5(1)(f), whether the underlying decision to expel can be justified under national or Convention law.18

In the case of Čonka, the applicants explicitly put forward the argument that their arrest had not been necessary to secure their departure from Belgium. However, the Court quoted from earlier case law to express once more that an unnecessary pre-deportation detention does not constitute a   See A. Leerkes and D. Broeders, ‘A Case of Mixed Motives?: Formal and Informal Functions of Administrative Immigration Detention,’ British Journal of Criminology 50 (2010), p. 830–850. 18   Chahal v. the UK, § 112; See also Slivenko v. Latvia, §146; Čonka v. Belgium, § 38 and in a series of admissibility decisions: Arslan v. The Netherlands; Özmen v. The Netherlands; Meric v. The Netherlands; Döner v. The Netherlands; Polat v. The Netherlands; Caliskan v. The Netherlands; Över v. The Netherlands, Erdogan v. The Netherlands, Decisions of 18 September 2001. 17

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unlawful detention.19 It thus endorses interferences with the right to personal liberty that are unnecessary, an approach that raises important questions as regards the precise status of the right to personal liberty of unwanted foreigners.20 In Saadi, the Court adopted a similar approach to detention as a measure to prevent unauthorised entry. Saadi was a Kurdish asylum seeker from Iraq, who applied for asylum in the United Kingdom. After a few days, during which he was granted temporary leave to remain, he was detained in a centre that was specifically designed to hold asylum seekers while their claims where decided in a fast track procedure. The centre was designed to hold persons who were not deemed likely to abscond, and the sole aim of his detention consisted in speedy decision-making and bureaucratic efficiency. The Court held that: the principle that detention should not be arbitrary must apply to detention under the first limb of Article 5 § 1(f) in the same manner as it applies to detention under the second limb. Since States enjoy the right to control equally an alien’s entry into and residence in their country, it would be artificial to apply a different proportionality test to cases of detention at the point of entry than that which applies to deportation, extradition or expulsion of a person already in the country.21

Thus, just as pre-deportation, pre-admittance detention does not need to be a necessary measure. The Court stressed that Saadi’s detention had to be ‘closely connected to’ the purpose of preventing unauthorized entry in order to be lawful, but as the purpose of the deprivation of liberty was to enable the authorities quickly and efficiently to determine the applicant’s claim to asylum, that requirement was considered to be satisfied. The only instance in which the Court addresses issues concerning the necessity and the proportionality of the detention ipso facto relate to the duration of the detention. In Chahal the Court stated that deprivation of liberty will be justified only as long as deportation proceedings are in progress.22 If these proceedings are not carried out with due diligence, the detention will cease to be lawful under Article 5.23 To judge the diligence with which the state

  Čonka v. Belgium, § 38.   This is only different when national laws put down a necessity requirement, as the detention has to be in accordance with national law as we have seen above. See Rusu v Austria. 21   Saadi v United Kingdom (Grand Chamber), 29 January 2008, Appl. No. 13229/03, § 73. 22   Chahal v. the UK, § 113. 23   Kolompar v. Belgium, 24 September 1992, Series A no. 235C, § 36; Chahal v. the UK, § 113 and Samy v. The Netherlands, Decision of 4 December 2001, appl. No. 36499/97. 19 20

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handles the expulsion proceedings, the interests which are at stake for the applicant also play a role. In Chahal the applicant held that if he would be returned to his country of origin, he would be subjected to treatment in violation of Article 3 ECHR. As his case accordingly involved considerations of an extremely serious and weighty nature, it was not considered in his interest, nor in that of the general public, if decisions about his expulsion would be taken hastily.24 Therefore, if such grave interests are involved, it is only logical that deportation proceedings take longer than when the applicant’s interests are of a less serious nature. A lack of due diligence of the authorities in the expulsion proceedings amounts to a violation of Article 5(1)(f). In Saadi, the Court held that the duration of seven days that Saadi spent in detention was not excessive, in view of the purpose – speedy decision making in the asylum procedure – pursued by it.25 The Court’s interpretation of the restriction on the right to personal liberty permitted by Article 5(1)(f) cannot be regarded as a narrow one. Moreover, its understanding of Article 5(1)(f) seems difficult to reconcile with its position that detention must always be compatible with the purpose of that provision, which is to prevent persons from being deprived of their liberty in an arbitrary manner. Although the Strasbourg case law on immigration detention is not devoid of considerations regarding proportionality, they are conspicuously absent when it comes to assessing whether the initial decision to detain is justified. This raises some basic questions concerning the protection offered by the Court, particularly in view of its recurring statement that any deprivation of liberty should be in accordance with the general principles expressed or implied in the Convention. The concept of proportionality – a concept which is utilised to reconcile rights protection with the public interest by attempting to find a balance between the two – is one of these general principles.26 According to the Court, the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s rights is inherent in the whole of the Convention.27 In order to place the Court’s approach to immigration detention in a wider perspective, it may be helpful to look at the way in which the Court evaluates the lawfulness of other categories of deprivation of liberty.

  Chahal v. the UK, § 117. The Court did not consider Chahal’s detention, which took almost six years, too long. 25   Saadi v UK (Grand Chamber), § 79. 26   See also P. van Dijk and G.J.H. van Hoof 1998, p. 81. 27   Soering v. the UK, 7 July 1989, Series A No. 161, § 161. See also Cossey v. the UK, 27 September 1990, Series A No. 184, § 37. 24

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The next section will thus discuss case law by the ECtHR concerning the detention of persons of unsound mind, alcoholics and vagrants. 4.  Deprivation of Liberty of Persons of Unsound Mind, Alcoholics and Vagrants In the case of Guzzardi, the Court shed light on the reasons underlying the permissible detention of the mentally ill, drug addicts, alcoholics and vagrants in Article 5 (1) under e. The Convention permits detention of these people, not only because they have to be considered as dangerous to public safety, but also because their own interests may necessitate their detention.28 According to the Court an individual cannot be considered to be ‘of unsound mind’ for the purposes of Article 5(1)(e) and deprived of his liberty under that provision unless three conditions are met. First, the person concerned must be reliably shown to be of unsound mind. Second, the mental disorder must be of a kind or degree warranting compulsory confinement. Last, the validity of continued confinement depends upon the persistence of such a disorder.29 The Court regards the necessity of the detention as indispensable when assessing the lawfulness of such deprivations of liberty. Furthermore, its requirement that an objective medical report must demonstrate to the competent national authority the existence of a genuine mental disturbance whose nature or extent is such as to justify such a confinement, which cannot be prolonged unless the mental disturbance continues, is a concrete elaboration of the principle of proportionality.30 In its case law concerning detention of mentally ill persons, the Court explicitly refers, in general terms, to the required necessity of the deprivation of liberty in the sense that less restrictive measures would not suffice: ‘The detention of an individual is such a serious measure that it is only justified where other, less severe measures, have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The deprivation of liberty must be shown to have been necessary in the circumstances.’31   Guzzardi v. Italy, 6 November 1980, Series A No. 39, § 98.  See X v. the UK, 5 November 1981, Series A No. 46, § 40; Winterwerp v. the Netherlands, § 39; Luberti v. Italy, 23 February 1984, Series A No. 75, § 27; Johnson v. the United Kingdom, 24 October 1997, Reports 1997-VII, § 60; Varbanov v. Bulgaria, 5 October 2000, Reports 2000-X, § 45. 30   Herczegfalvy v. Austria, 24 September 1992, Series A No. 244, §63. 31   Varbanov v. Bulgaria, §46. See for a recent case: C.B. v. Roumanie, 20 April 2010, Appl. No. 21207/03. 28 29

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This, however, does not exclude the national authorities being granted a wide margin of appreciation with regard to question whether it is necessary to detain a mentally ill person. According to the Court, it is primarily for them to evaluate the evidence brought forward.32 Therefore it does normally not elaborate on what in its own view would constitute a kind or degree of mental illness to justify deprivation of liberty. In the case of Winterwerp it examined the Dutch legislation and case law bearing on Winterwerp’s confinement, and its conclusion that Article 5 was not violated is grounded in the fact that this legislation and case law allowed only for confinements of mentally ill people which were necessary and proportional.33 In the case of Witold Litwa the Court elaborated on what is meant with the term ‘alcoholics’ in Article 5(1)(e). In light of the object and purpose of this provision the Court considered that persons who are not medically diagnosed as alcoholics, but whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves, can be taken into custody for the protection of the public or their own interests, such as their health or personal safety.34 The Court found the detention of Witold Litwa under Article 5(1)(e) unlawful, because it was considered unnecessary. It reiterated once again its generally formulated statement that the detention of an individual is such a serious measure that ‘it is only justified where other, less severe measures have been considered and found to be insufficient.’ It concluded this argumentation by stating once again that the deprivation of liberty must accordingly be necessary in the circumstances.35 So far, the Court has only decided very few cases where national authorities have relied on Article 5(1) under e to justify the detention of persons that they designate as vagrants. Russia has done so with regard to persons from Chechen origin who were arrested by Russian police or security forces, and who have subsequently been disappeared. In these cases it was clear that vagrancy was not the real ground for detention – in one case the ‘vagrant’ was even arrested in his own home.36 In an altogether different case, the taking into (medical) care of a person who was not able to take care of herself

  See for example Wassink v. the Netherlands, § 25: ‘The Court sees no grounds for questioning the weight of the evidence on which the President relied to reach his decision that it was necessary to extend Wassink’s confinement.’ 33   Winterwerp v. the Netherlands, § 38. 34   Witold Litwa v. Poland, 4 April 2000, Reports 2000-III, §§ 60 and 61. 35   Ibid., § 78. See also Hilda Hafsteinsdottir v. Iceland, 8 June 2004, Appl. No. 40905/98. 36   Satayeva v. Russia, 29 October 2009, Appl. No. 21486/06; Vakhayeva v. Russia, 29 October 2009, Appl. No. 1758/04; and Bitiyeva and X v. Russia, 21 June 2006, Appl. Nos. 57953/00 and 37392/03. 32

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anymore, was not seen as a deprivation of liberty in the sense of Article 5.37 In a very early case dealing with the detention of three vagrants by Belgian authorities, the Court was less observant of criteria such as proportionality and necessity as in the cases cited above. In Ooms, Wilde and Versyp, Belgian law defined vagrants as people without a fixed abode, no means of subsistence, and no regular trade or profession. According to the Court, persons who fell within this definition could be considered to be vagrants for the purposes of Article 5(1)(e), and they can be detained under this provision if their detention is ordered by the competent authorities and occurs in accordance with a procedure prescribed by domestic law.38 5.  Inadequate Protection for Immigration Detainees? We have seen that the level of scrutiny applied by the European Court of Human Rights when it assesses immigration detention is not of the same intensity as it is when the lawfulness of most other categories of deprivation of liberty are examined. Nor are those principles applied which in other case law are considered intrinsic to the European system of human rights’ protection. The Court’s case law with regard to immigration detention is seriously lacking in considerations of proportionality and necessity,39 even though these considerations are not entirely absent from its judgments. Yet why does the Court consider it irrelevant whether the deportation order underlying the detention is lawful, whereas with regard to mentally ill persons, it is regarded of crucial importance for the lawfulness of the confinement that the person concerned is in reality suffering from a mental illness? Why does the Court with regard to immigration detention not require that other, less severe, measures have been considered and found to be insufficient to prevent unauthorised entry or to effect deportation? The Court, by refusing to assess on a case by case basis when prevention of unauthorised entry or realisation of   H.M. v. Switzerland, 26 February 2002, Appl. No. 39187/98.   De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, Series A No. 12, § 69. 39   Note that some judges in Strasbourg question this approach. See the partly dissenting and partly concurring opinion of Judge Kovler in Slivenko v. Latvia, in which case this judge has problems reconciling the conclusion that Article 8 was violated with the fact that the deportation proceedings and the detention of the applicants were not deemed unlawful. Also in Saadi v. United Kingdom, the dissenting judges do not agree with the opinion of the majority that a detention which merely serves bureaucratic efficiency can be lawful under Article 5. Note also that the European Commission on Human Rights in one of its early decisions on admissibility held that a detention under Article 5(1)(f) is subject to ‘principles of necessity or proportionality’: Caprino v. the UK, admissibility decision of 17 July 1980, 22 DR 5, p. 13. 37 38

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deportation justify detention, leaves the Contracting States a very wide margin of appreciation. This is problematic, not in the least because the Court does not explicitly say that it allows the states such a great measure of discretion and why. Should the Court at least not offer an explicit justification for its lesser appraisal of the right of personal liberty in immigration cases than in criminal law and other public order cases? Could it be that the Court considers immigration policy a politically sensitive area where it is almost required to leave national authorities a wide margin of appreciation? The European experience with the harmonisation of immigration and asylum policy make it only too clear that national states are reluctant to give up their prerogatives in that field. It would be naïve to exclude the possibility that the Court is influenced by considerations regarding political sensitivities of national states. Nonetheless, the attitude the Court has taken in cases dealing with immigrants’ rights in connection with Articles 3 and 8 of the Convention is not always so deferential to national sensitivities, and it has often granted these provisions a wider scope of protection than national highest immigration courts did.40 In this light, it cannot be asserted that the sole reason for the Court’s inadequate protection for immigration detainees consists of an uneasiness to encroach too far on an area that consists of ‘high politics’.41 For the same reason it would also not hold to ascribe the (il)logic of the Strasbourg case law on immigration detention exclusively to the fact that people deprived of their liberty under immigration legislation are foreign nationals whereas people that are detained on other grounds often have the nationality of the state detaining them. The issue of general human rights protection – granted to all persons simply due to their membership of humanity – as compared to a much narrower conception of rights protection that is enjoyed by persons in virtue of their citizenship, or nationality, is an interesting one. In theory, a clear line separates the two concepts, but in practice it is often that people enjoy protection of their human rights by the state exactly because they are citizens of that state. Therefore, confusion can occur over the distinction between fundamental rights and rights of a more contractual nature.42 Such confusion may easily lead to erosion in the implementation   D. v. UK, 2 May 1997, Reports 1997-III, §§ 49–54; K. Hailbronner, Immigration and Asylum Law and Policy of the European Union, The Hague: Kluwer Law International 2000, at p. 495. 41   Although serious inconsistencies and shortcomings exist in this case law as well, as shown by M.B. Dembour, ‘Human Rights Law and National Sovereignty in Collusion: The Plight of Quasi-Nationals at Strasbourg’, Netherlands Quarterly of Human Rights 21/1 (2003), p. 63–98. 42   J. Edwards, ‘Asylum seekers and human rights,’ Res Publica 7 (2001), p. 159–182 at p. 160 and 178. 40

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of the human rights of asylum seekers and illegal immigrants, as they can expect human rights protection only by reason of their humanity. This process of limiting human rights protection for outsiders is accelerated, as well as encouraged, by states’ attempts to curtail immigration by introducing ever more restrictive measures.43 The above-mentioned reasons may somewhat contribute to the difficulty the Court has in defining adequate safeguards for immigration detainees. However, it may well be that the very roots of the problem have to be sought elsewhere. Perhaps, in order to comprehend the Court’s attitude concerning immigration detention, it is necessary to delve a little deeper into a concept that has been the foundation of politics and law since the 17th century, a notion which finds itself once again at the centre stage of contemporary political and legal thinking: sovereignty. Oversimplifying matters a little, the debate concerning sovereignty can be characterised as follows: on the one hand it is asserted that in the contemporary period sovereignty is eroding under the influence of the international human rights norms and the processes of globalisation, while on the other hand others choose to focus on the increasingly aggressive assertion of states’ rights to control their borders and contend that such wearing away of sovereignty is illusionary. In order to clarify these issues, it is perhaps helpful to make a distinction between different aspects of sovereignty. There is sovereignty as a legitimating status for political power therewith included the use of force and there is sovereignty as a claim to determine and protect what constitutes the boundary between inside and outside.44 With regard to the latter aspect of sovereignty we can distinguish between the various ways in which boundaries are construed. The most obvious and common of these is the drawing of those imaginary lines on the surface of the earth that we call national territorial borders. It is the notion of territoriality – the linking of political authority to clearly demarcated territory – which the modern notion of sovereignty has brought about, which I want to focus upon below. It is precisely because of the persistent and unchallenged idea of territoriality that the Court grants national states an almost unlimited margin of appreciation in deciding on immigration detention. The statement that the   See H. van Amersfoort, ‘International Migration and Civil Rights: The Dilemmas of Migration Control in an Age of Globalisation,’ in: E. Guild (ed.), The Legal Framework and Social Consequences of Free Movement of Persons in the European Union, The Hague: Kluwer Law International 1999, p. 73–88, at p. 87. 44  N. Walker, ‘Late sovereignty in the European Union’, in: N. Walker (ed.), Sovereignty in transition, Oxford: Hart publishing 2003, p. 3–32; and W.G. Werner and J.H. De Wilde, ‘The endurance of sovereignty,’ European Journal of International Relations, 7/3 (2001), p. 283–313, at p. 288. 43

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Westphalian territorial order created a territorial structure through which norms distinguishing between legitimate and illegitimate violence were construed,45 is perhaps illustrated precisely by the Strasbourg case law on immigration detention. If one specific aspect of sovereignty is perceived as the uninfringeable right of states to control their territorial borders, this will inevitably have implications for the coercive means used to assert this right. The use of internal violence and the symbolic construction of boundaries by the state has at all times been limited by various discourses, such as constitutionalism, the rule of law, citizenship, and most recently international human rights. Inter-state violence has also always been subject to limits, embodied in international law. But the notion of territoriality has never been seriously challenged by any of these discourses, which are all underpinned by the belief that violations of human dignity – although they may have been defined differently over time – are intolerable. As unlimited jurisdiction over people has inevitably proven itself to produce such violations a variety of instruments have been developed to limit such use of sovereign power. However, unlimited sovereign power over territory may equally cause human dignity to suffer. The washing up of bodies on the southern shores of Europe and the contemporary practices of trafficking in and smuggling of human beings serve only as the most obvious examples. Immigration detainees are another illustration of the blind spot that all these discourses suffer with regard to this one specific aspect of sovereignty. Perhaps it is understandable that the concepts of constitutionalism and citizenship are not (yet) able to deal with violations of human dignity caused by the territoriality of the modern state. Although these notions are underpinned by universalistic ideas about human equality and dignity, they have developed in the very particularistic framework of the territorial state. As such they are inevitably bound up with territoriality. But neither the discourse of human rights, which pretends to be truly universal and has developed outside a purely national context, has been able to transform the modern territorial order. The international refugee regime provides an apt illustration of this argument. For at the heart of this regime we find the contradiction between the right of an individual to seek asylum and the absence of any obligation of a state to grant asylum. In this context, Robyn Lui has written that ‘the refugee regime is a form of geopolitical humanitarianism that has as its ‘core business’ the preservation of the value of the nation-state form.’46 The manner in which the rights  R.W. Mansbach and F. Wilmer, ‘War, Violence, and the Westphalian System’, in: Albert, Jacobson and Lapid (eds), Identities, Borders, Orders, Minneapolis: University of Minnesota Press 2001, p. 51–71, at p. 56. 46   R. Lui, ‘Governing refugees 1919–1945,’ Borderlands e-journal 1/1 (2002), at p. 6. 45

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of immigration detainees are protected in Strasbourg is another example of the persistence of territoriality, even in a discourse that aspires to surpass it. 6.  The Liberty of Immigrants and the Laws of the European Union Given the emphasis on and centrality of national territoriality in the case law of the ECtHR, it is interesting to take a look at emerging EU law on immigration detention. With regard to the legal instruments that authorise the use of detention by Member States in immigration procedures, Dan Wilsher has argued that ‘so far as the Union legislature is concerned, we have seen some of the same attachment to detention as a means of policing the EU border that traditional states have maintained.’47 Even if this would be true as regards the legislature, it would be unwise to overlook the role that the Court of Justice eventually plays in the interpretation of the resulting legal instruments. In this context it is well worth investigating whether the Court of Justice could put forward a more adequate understanding of the immigrant’s right to personal liberty as a fundamental right than the Court in Strasbourg has done so far. Although the scope of this chapter is not such that it can formulate a full answer to that question, I will provide an outline of the legal framework regulating immigration detention in the EU below, and briefly consider the position of the Court in Luxembourg. At present three instruments of EU law regulate and/or authorise the use of immigration detention by the Member States. In Article 7 of Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers, Member States are given the power to detain applicants for asylum when this proves necessary, for example for legal reasons or for reasons of public order.48 The codification of a general norm of free movement for applicants for asylum within the state in the first paragraph of that same provision together with the requirement that the detention be a necessary measure, may be used to challenge certain practices, such as detention for mere administrative expediency in the context of fast-track procedures, as was the case in Saadi. In that case, we saw that the Court in Strasbourg explicitly excluded a necessity requirement for the lawfulness of detention. The Directive on procedures in Member States for granting and withdrawing refugee status stipulates that

  D. Wilsher, The Liberty of Foreigners: A History, Law and Politics of Immigration Detention, Nijmegen: Wolf Legal Publishers 2009, at p. 145. 48   Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L31/18, 6 February 2003. 47

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Member States shall not hold a person in detention for the sole reason that he or she is an applicant for asylum.49 Compared with the Directives on reception conditions and procedures, the recently adopted Returns Directive contains more legal safeguards for the individual.50 According to Article 2(1), the Directive applies to third-country nationals staying illegally in the territory of a Member State. In Article 15, Member States are given the power to detain a third-country national who is subject to return procedures (also provided for by the Directive in Article 8) in order to prepare the return or carry out the removal process, but only if other sufficient but less coercive measures cannot be applied effectively in a specific case. As such, the Returns Directive clearly requires detention to be a proportionate measure. The Preamble also makes explicit that the use of detention should be limited and subject to the principle of proportionality with regard to the means and the objectives used. Detention should furthermore last for as short a period as possible and only be maintained as long as removal arrangements are in progress and executed with due diligence. If removal is no longer possible, detention ceases to be justified. The clarity with which the principle of proportionality is thus introduced in the Directive is somewhat obscured by the way in which Article 15 enumerates two permissible but non-exhaustive grounds for detention: detention is allowed in particular when (a) there is a risk of absconding or (b) the thirdcountry national avoids or hampers the preparation of the return or removal proceedings. Questions can be raised about the very fact of including these grounds for detention, as it seems that a consistent application of the principle of proportionality in itself aims to ensure that detention in the context of removal can only be resorted to if there is a risk of absconding. But while the first ground for detention can thus be seen as a mere affirmation of the importance of proportionality when it comes to the use of detention, the fact that the two enlisted grounds for detention are non-exhaustive is a cause for concern. Another problematic aspect of the Directive is the very long maximum period that it sets to detention: 6 months with a possible extension of 12 months if the delay in removal results from a lack of co-operation by the third-country national or if it is due to delays in obtaining the necessary documents from third countries.

  Article 18 (1) of Council Directive 2005/85/EC of 1 December 2005 laying down minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326/13, 13 December 2005. 50   Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying 49

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In November 2009 the Court of Justice issued judgment on the first reference for a preliminary ruling concerning the Returns Directive.51 While I cannot deal with the Kadzoev case in its entirety here, it is important to call attention to the fact that the Court followed a strict interpretation of the Returns Directive that placed the safeguards which it contained for the individual at the forefront. Accordingly, it refused to interpret the Directive in such a manner that would lead to an extension of the time limits contained therein. It also held that asylum seekers cannot be detained under the Returns Directive. Their right to personal liberty is thus regulated by the EU acquis on asylum. In Kadzoev, the Court was not asked to rule on the question under which circumstances the use of detention by a Member State is permitted under the Directive. However, if, in the future, it is to address that question, it is unlikely that it will ignore general principles of EU law in answering it. In this context, it should also be highlighted that Member States, when implementing EU law, are bound by the Charter of Fundamental Rights of the European Union, which permits limitations on the right to personal liberty only if these are proportionate and necessary, and genuinely meet objectives of general interest that are recognised by the Union.52 It seems justified to conclude that here is no way in which the Court in Luxembourg could reasonably take the same stance as the Court in Strasbourg as regards the necessity of immigration detention. 7. Conclusions The European Court of Human Rights sanctions immigration detention that in certain respects is unnecessary and disproportional to the aims which are to be achieved with such detention. However, an unnecessary or disproportionate restriction on the right to liberty constitutes arbitrariness, the prohibition of which in turn represents the core of the right to personal liberty. Several factors contribute to this paradox in the Court’s case law. The fact that recourse to immigration detention has increasingly become a general policy of European states is likely to cause that those states are allowed a wider margin of appreciation. This is even likely as immigration policy in general represents a policy area in which states harbour much sensitivity regarding their

third-country nationals, OJ L 348/98, 24 December 2008. See the chapter by Diego Acosta Arcarazo in this book. 51   Kadzoev, Case C-357/09 PPU. 52   Articles 6 and 52(1) of the Charter.

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sovereign power. Finally, a particular understanding of sovereignty firmly linked to territorial boundaries, as a state’s ‘undeniable right to control aliens’ entry into and residence in its territory,’ has an impact on the assumed appropriateness of the coercive means used to exercise such control. We have seen that the use of detention in Europe as a tool to deal with unwanted migration is only allowed in order to prevent unauthorised entry or to carry out deportation. If a state pursues other aims with the use of immigration detention, such as criminal investigations or a policy of deterring potential immigrants or asylum seekers, detention is unlawful, and Article 5(1) is breached. This also follows from the prohibition of the misuse of power in Article 18 of the Convention. Yet, with the level of scrutiny that is applied by the Court in Strasbourg to the decision to detain under immigration legislation, misuse of power is at best hard to prove, at worst it is encouraged. Empirical research suggests that it is exactly at times when the need for deterrence is most acutely felt that permissible reasons for immigration detention are more broadly applied to actually detain immigrants.53 As such, there is a real danger that the manner in which fundamental rights of migrants are protected is influenced by the current attitude in European states vis-à-vis immigration. This attitude consists of an increasing perception that immigration presents a threatening problem that can only be controlled with far-reaching measures that pay no heed to individual rights and freedoms. Instead of contributing to this process, constitutional adjudication, at the heart of which is always the quest for a fair and just balance between the public good and the rights of the individual, could add to its reversal.

  See with regard to the situation in the US: M.R. Pistone, ‘Justice Delayed is Justice Denied: a Proposal for Ending the Unnecessary Detention of Asylum Seekers,’ Harvard Human Rights Journal, 12 (1999), p. 197–263, at p. 207–211.

53

Section 3 EU Immigration and Asylum

The Impact of the Treaty of Lisbon over EU Policies on Migration, Asylum and Borders: The Struggles over the Ownership of the Stockholm Programme Sergio Carrera* 1. Introduction The European Union’s Area of Freedom, Security and Justice (AFSJ) has become one of the central political components of the European integration process. Eleven years have passed since the transfer to shared legislative competence by the Amsterdam Treaty in 1999 of domains surrounding the regulation of migration, asylum and external borders checks. Few anticipated the dynamism which has characterized the level of policy convergence achieved over these areas where national sovereignty still remains so much at stake. The European Union (EU) now counts with an emerging supranational body of law covering various elements substantiating these policy domains. The second half of 2009 constituted a decisive period towards the renewal of the classical institutional configurations and boundaries of the AFSJ. The combination of the entry into force of the Treaty of Lisbon and the endorsement by the European Council of the Stockholm Programme – the third multiannual programme setting a new AFSJ political agenda for the next five years – in December 2009 marked the opening of a new phase in the development of the common European policies on migration, asylum and borders. This new phase has started with profound struggles at the highest EU institutional levels. For the very first time since 1999, the AFSJ has witnessed a direct clash between the Council and the European Commission over the ownership of the policy and legislative agenda stipulated inside the Stockholm Programme. The dispute between the Council and the Commission on ‘Stockholm’ took over most of the discussions inside the Council during the Spanish Presidency in the first quarter of 2010. The ‘Stockholm affair’ started

*  The author would like to express his gratitude to the EU officials who were interviewed for the purposes of this paper. The author is also grateful to Prof. Elspeth Guild for her comments on a draft version of this paper.

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in April 2010 along with the publication of the Commission’s Action Plan Implementing the Stockholm Programme titled ‘Delivering an area of freedom, security and justice for Europe’s citizens’. The Action Plan, which was ‘only’ supposed to put into practice the guidelines stipulated by the European Council in the Stockholm Programme, was perceived by certain EU Member States’ representatives as going ‘too far’ from the Council’s guidelines. The ambition advocated by the new Commission in relation to the legislative agenda to cover the period 2010–2014 and the transparency in its intentions not to respect every comma of the Stockholm Programme was perceived as an act of provocation by some Council representatives. The affair culminated with the Justice and Home Affairs (JHA) Council Conclusions of 3 June 2010 calling the Commission to comply (‘word-by-word’) with the Council’s Stockholm Programme ‘as the only guiding frame of reference for the political and operational agenda of the European Union in the Area of Justice, Security and Freedom’. How do we need to understand these institutional struggles around the ownership of the Stockholm Programme and the EU’s AFSJ legislative agenda 2010–2014? The Treaty of Lisbon has introduced important transformations to the legal foundations of the AFSJ and its policies on migration, borders and asylum.1 It has reshaped, and in certain cases enlarged, the material scope of the previous EU legal basis. The Lisbon Treaty has also expanded the EU method of cooperation in most of these fields.2 While it is true that since 2005 the ordinary legislative procedure already (former co-decision) applied to a majority of domains falling within the scope of the former (First Pillar) Title IV EC Treaty (such as cooperation over external borders checks and asylum), Lisbon has expanded this ‘ordinary procedure’ to areas such as legal (and labour) migration and the integration of third country nationals (TCNs). It has also reinforced ‘more Europe’ by extending the content of the already existing legal basis and/or including new areas of express EU legal competence. These changes could be seen to have limited repercussions from a pure legal point of  view,3 especially in contrast with the larger transformations introduced   For a detailed empirical overview refer to S. Peers, ‘Legislative update: EU Immigration and Asylum Competence and Decision-Making in the Treaty of Lisbon’, European Journal of Migration and Law, 2008, Vol. 10, No. 2, p. 219–247. 2   For a study of the exceptions and differentiation which still applies under the new Treaty of Lisbon framework refer to S. Carrera and F. Geyer, ‘The Reform Treaty and Justice and Home Affairs: Implications for the Common Area of Freedom, Security and Justice’, in: E. Guild and S. Carrera (eds), Security versus Justice? Police and Judicial Cooperation in the European Union, Hampshire: Ashgate Publishing 2008, p. 289–308. 3   Hailbronner concluded that ‘Legislative competences of the European Union in immigration and asylum law have not been fundamentally extended or modified by the Lisbon Treaty’. 1

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over  (former) Third Pillar domains (criminal justice and police cooperation).4 Yet, their political implications over the institutional and power relational structures at EU level on ‘migration-related matters’ should not be underestimated. The new Treaty framework has also brought crucial institutional reforms. The monopoly that the JHA Council used to have over the AFSJ has come to an end. Lisbon has transformed the roles of the European Commission and the European Parliament in areas which were considered to fall under the exclusive hands of EU Member States and the Council. The pieces composing the struggles over the ownership of the Stockholm Programme need in fact to be examined from this new institutional board. This period of unrest has also arrived in a phase of major reconfigurations at EU level, with a new (Barroso II) Commission and a new European Parliament in the second half of 2009. The Commission, in particular the (former) Directorate General dealing with Justice, Freedom and Security (DG JLS), experienced a restructuring in the beginning of 2010. This DG, which counted with two different Commissioners since February 2010 has been finally split into two different directorates as from 2 July 2010 (respectively DG for Justice and DG for Home Affairs). This Chapter examines the struggles over the ownership of the policy and legislative agenda to cover these EU policies for the next five years as enshrined inside the Stockholm Programme. It puts in relation the Stockholm affair with the most important changes provided by the Lisbon Treaty over the role and competences of the Commission and the European Parliament in the scope of policies on migration, integration of TCNs, external border checks and asylum. By examining the changing status of each of these actors on these policy areas, the contribution aims at shedding light as regards the rationale and potential effects that the Stockholm affair may inflict over the future shapes of EU policy covering migration, asylum and borders. After this introductory section, Section two synthesizes the context within which the first phase of the EU’s AFSJ has taken place since 1999 until the end of 2009. Section three presents the Stockholm affair by assessing the Commission’s Action Plan implementing the Stockholm Programme and the ways in which the latter diverges from Council’s Stockholm Programme. Section four studies the impact that

K. Hailbronner, Implications of the EU Lisbon Treaty on EU Immigration Law, Presentation at the Fourth Workshop on the Transatlantic Exchange for Academics in Migration Studies, San Diego, March 29–30, 2010. Available at the Centre for International and European Law on Immigration and Asylum, University of Konstanz, Germany, http://migration.ucdavis.edu. 4   S. Peers, ‘Finally ‘Fit for Purpose’? The Treaty of Lisbon and the end of the Third Pillar legal order’, Yearbook of European Law, 2008, Vol. 27, p. 47–64.

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the Lisbon Treaty has inflicted over the role of the Commission over EU policies on migration, borders and asylum. Section five concludes by bringing about some reflections as to the extent to which the Lisbon Treaty and the ongoing institutional reshaping around the EU’s AFSJ might influence the boundaries and future directions guiding the European legal system on migration, borders and asylum. 2.  The First Phase of the EU’s AFSJ: From Tampere to Stockholm

(through The Hague)

Since the entry into force of the Treaty of Amsterdam in May 1999 and the creation of the so-called ‘First Pillar’ (Title IV EC Treaty),5 the Union has developed a harmonised body of law and an emergent common policy on migration, borders and asylum. This has been so even if the post-1999 Treaty framework was considered to be unsatisfactory in light of the ‘First/Third Pillar’ divide,6 the application of the unanimity voting rule in the Council and the democratic deficit resulting from the consultative role of the European Parliament (EP) (former Article 67 EC Treaty),7 as well as the weak judicial oversight of these policies because of the limitations in the jurisdiction of the Court of Justice.8 While the dynamism characterizing the enactment of

 Title IV EC Treaty on Visas, Asylum, Immigration and Other Policies related to Free Movement of Persons, Articles 61–69. 6   Some migration-related policies falling under the scope of the Third Pillar – Title VI of the TEU on Provisions on Police and Judicial Cooperation in Criminal Matters, Articles 29–42. This was the case for instance in relation to measures on ‘trafficking on persons’. Refer to former Article 29 TEU. T. Balzacq and S. Carrera, ‘The Hague Programme: The Long Road to Freedom, Security and Justice’, in: T. Balzacq and S. Carrera (eds), Security versus Freedom? A Challenge for Europe’s Future, Hampshire: Ashgate Publishing 2006, p. 1–34. Refer also to J. Apap and S. Carrera, ‘Progress and Obstacles in the Area of Justice and Home Affairs in an Enlarging Europe’, in: J. Apap (ed.), Justice and Home Affairs in the EU; Liberty and Security Issues after Enlargement, Cheltenham: Edward Elgar 2004, p. 1–24; J. Apap and M. Anderson, Striking a Balance between Freedom, Security and Justice in an Enlarged European Union, Brussels: Centre for European Policy Studies 2002; T. Balzacq and S. Carrera, Migration, Borders and Asylum: Trends and Vulnerabilities in EU Policy, Brussels: Centre for European Policy Studies 2005. 7   Article 67 EC Treaty foresaw a transitional period of five years after the entry into force of the Amsterdam Treaty during which the co-decision procedure would not apply to Title IV but instead the unanimity in the Council on a proposal from the Commission or o the initiative of a Member State and after consulting the European Parliament. 8   According to former Article 68 EC Treaty the European Court Justice had competence to interpret Title IV EC Treaty or the validity or interpretation of acts of the institutions of the 5

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common European policies in these domains has been notable, the relationship between the political priorities as proclaimed by the EU Member States and the actual legislative outputs coming out of the decision-making processes inside the Council have not always fully matched. On the basis of the new legal basis enshrined in the Amsterdam Treaty, the European Council adopted under the auspices of the Finnish Presidency in October 1999 the first multiannual programme on the EU’s AFJS – the Tampere Programme.9 The programme contained an ambitious agenda (the Tampere milestones) for the development of a ‘Union for Freedom, Security and Justice’ during the years 1999–2004 and called for a ‘common EU policy and approach’ to be progressively established on issues such as labour immigration, integration of TCNs, external borders controls and asylum. The goal was to make ‘full use of the possibilities offered by the Treaty of Amsterdam’. In light of the call given by the Council, the Commission presented several initiatives covering these fields. The ways in which EU Member States welcomed these proposals were mixed, to say the least. Some Commission proposals were not even discussed inside the Council.10 Others were completely lost during Council negotiations11 and some were subject to profound transformations when negotiated inside the Council. The political goals embracing the AFJS as agreed by Member States have indeed not always corresponded with legislative outputs, and the implementation of the Tampere Programme constitutes a good example of that mismatch. The application of unanimity inside the Council did not facilitate for the Tampere milestones to be accomplished.12 Despite of the formal transfer to shared EU competence of these domains and the political impetus given by Tampere, cooperation on migration, borders and asylum has been influenced

Community based on this Title only ‘in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law’.     9   European Council (1999), Presidency Conclusions of the Tampere European Council, 15–16 October 1999, SN 200/99, Brussels. 10   This was the case of the Commission Communication, on a Open Method of Coordination for the Community Immigration Policy, COM(2001)387, Brussels, 11.7.2001. 11   Proposal for a Council Directive on the Conditions of Entry and Residence for the Purpose of Paid Employment and Self-employment Activities, COM(2001)386 final, Brussels, 11.07.2001. S. Carrera, Building a Common Policy on Labour Immigration: Towards a Comprehensive and Global Approach in the EU?, CEPS Working Document No. 256, Brussels: Centre for European Policy Studies 2007. 12   A. Wiesbrock, Legal Migration to the European Union, Leiden: Martinus Nijhoff Publishers 2010; H. Schneider, ‘Towards a European Migration Policy: From Maastricht to Amsterdam, from Tampere to the Hague’, in: H. Schneider (ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future, Volume II, Maastricht: Forum Maastricht 2005, p. 7–33.

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by a strong ‘intergovernmentalism’ which has most clearly materialised into the following strategies by EU Member States:13 First, keeping the limits of Europeanisation ‘high’ over their level of national discretion; Second, transferring their own national priorities and policies at EU level proposals and legislations; Third, attempting to influence the EU policy agenda with their own national priorities and finding ways to legitimize contested national politics at EU level and/or to a certain extent instrumentalise EU policies for justifying the former;14 Fourth, making use of the discourse of the ‘added value’ and ‘the principle of subsidiarity’ as a panacea for limiting ‘more EU’ in these areas; Fifth, questioning the existence of legal basis for the Commission to enact European legislation on areas such as labour immigration and integration of TCNs; and Finally, cooperating ‘outside’ the formal framework of the Treaties in these fields.15 These factors caused a certain trauma inside the DG JLS of the Commission, which affected its working methods and the kind of legislative proposals which have been proposed until our days. The limited success and/or failure of some of the previous Commission initiatives led to a lack of ‘ambition’ and a certain intergovernmental influence in its own internal policy strategies. The Commission became too concerned of Member States’ reactions and national political priorities even during the phases preceding the presentation of a proposal or policy plan.16 The Commission, anticipating the negotiations in the Council, too often privileged consensus and made concessions to certain member states in relation to the common European standards that it sought to promote. The process of watering down of European standards of legislative initiatives started to occur not only inside the Council rooms but even in the pre-proposal stage inside the Commission itself. The resulting scenario has

  E. Guild, S. Carrera and T. Balzacq, ‘The Changing Dynamics of Security in an Enlarged European Union’, in: D. Bigo, S. Carrera, E. Guild and R. Walker (eds), Europe’s 21st Century Challenge: Delivering Liberty, Farnham: Asghate Publishing 2010, p. 31–48. S. Carrera and E. Guild, ‘No Constitutional Treaty? Implications for the Area of Freedom, Security and Justice’, in T. Balzacq and S. Carrera (eds), Security versus Freedom: A Challenge for Europe’s Future, Aldershot: Ashgate Publishing 2006, p. 223–240. 14   M.-C. Foblets and D. Vanheule, ‘Instrumentalisation in the Realm of (European) Migration Law’, European Journal of Migration and Law, 2007, Vol. 9, No. 3, p. 283–286. 15   T. Balzacq, D. Bigo, S. Carrera and E. Guild, ‘The Treaty of Prüm and the EC Treaty: Two Competing Models for EU Internal Security’, in T. Balzacq and S. Carrera (eds), Security versus Freedom: A Challenge for Europe’s Future?, Aldershot: Ashgate Publishing 2006, p. 115– 136; E. Guild, Merging Security from the Two Level Game: Inserting the Treaty of Prüm into EU Law?, CEPS Policy Brief No. 124, Brussels: Centre for European Policy Studies 2007. 16  As a way of illustration reference can be made here to the European Commission, Communication, Policy Plan on Legal Migration, COM(2005) 669, Brussels, 21.12.2005. 13

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been one where some of the initiatives have already constituted ‘low common denominators’ pursuing too closely the national political priorities and ‘expectations’ of particularly powerful member states in the Council.17 The Tampere Programme constituted the first occasion in which the European Council officially endorsed a multi-annual programme outlining the policy guidelines for the implementation of the EU’s AFSJ. The latter has been ever since structured around the adoption of multi-annual programmes setting up the policy agenda to be achieved during five-year periods. The successor of the Tampere Programme was adopted in 2004 – The Hague Programme ‘Strengthening Freedom, Security and Justice in the European Union’ – under the Dutch Presidency of the EU.18 The Hague Programme came about in a completely different political momentum both at international and EU levels – i.e. the aftermath of the events of 9/11 2001 in the US and 11 March 2004 in Spain. Differently from its predecessor, which stressed its roots in ‘a shared commitment to freedom based on human rights, democratic institutions and the rule of law’, the Hague Programme’s focus was on a new urgency to ensure ‘the security of the European Union and its Member States’.19 For the first time the European Council invited the Commission to present an ‘Action Plan’ …in which the aims and priorities of this programme will be translated into concrete actions. The plan shall contain a timetable for the adoption and implementation of all the actions. (Emphasis added)

The Commission presented in May 2005 a Communication titled ‘The Hague Programme: Ten priorities for the next five years – The Partnership for European renewal in the field of freedom, security and justice’ COM(2005) 184   S. Carrera, E. Guild and A. Faure-Atger, Challenges and Prospects for the EU’s Area of Freedom, Security and Justice: Recommendations to the European Commission for the Stockholm Programme, CEPS Working Document No. 313, April, Brussels: Centre for European Policy Studies 2009. 18   Brussels European Council, Presidency Conclusions, 4 and 5 November 2004, 14292/1/04, Brussels, 8 December 2004, Annex I, ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’, point 1.5. 2005/C53/01, OJ C53/1, 3.3.2005. J.W. de Zwaan and F.A.N.J. Goudappel (eds), Freedom, Security and Justice in the European Union: Implementation of the Hague Programme, The Hague: T.M.C. Asser Press 2006. 19   For a critical assessment of the framing of security and liberty in the Hague Programme refer to D. Bigo, ‘Liberty, whose Liberty? The Hague Programme and the Conception of Freedom’, in: T. Balzacq and S. Carrera (eds), Security versus Freedom? A Challenge for Europe’s Future, Aldershot: Ashgate Publishing 2006, p. 35–44. Refer also to CHALLENGE Paper, Response to The Hague Programme: Protecting the Rule of Law and Fundamental Rights in the Next Five Years of an EU Area of Freedom, Security and Justice, Brussels: Centre for European Policy Studies 2004 (retrievable from www.libertysecurity.org). 17

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(The Action Plan).20 The second section of the Plan consisted of an Annex listing the concrete legislative measures and actions to be taken during the fiveyear period and a specific set of deadlines for their presentation to the Council and the EP. The Action Plan expressly stated that ‘this list closely adheres to the structure of the Hague Programme’ and its strategic objectives, and the Commission stressed that ‘the European Council should preserve its guiding role in the definition of strategic guidelines and the planning of future action in an area of freedom, security and justice’. The processes towards the adoption of the third multiannual programme on the EU’s AFSJ were different from its two predecessors. There was a certain awareness amongst some EU Member States’ leaders and the Commission about the new phase that the EU’s AFSJ was going to enter after the (at that time still uncertain) entry into force of the Treaty of Lisbon and its nexus with the adoption of the political agenda for the period 2010–2014. During the German Presidency of the EU (January-June 2007) a decision was taken at the informal meeting of Ministers of Interior and Immigration in Dresden in January 2007 by the German Minister of the Interior (Wolfgang Schäuble) and the Vice President of the European Commission (Franco Frattini who was in charge until April 2008) to set up an ‘informal’ working group at Ministerial level to reflect on and put forward proposals for the future of the EU’s AFSJ. The Future Group met for the first time in 20/21 May 2007 in Eltville (Germany).21 It delivered its Final Report titled ‘Freedom, Security and Privacy – European Home Affairs in an Open World’ in June 2008.22 While the Report was intended to ‘launch a debate on its content and the future of Home Affairs in the European Union’ its core objective was to have an ‘early influence’ over the future AFSJ political agenda for the years 2010–2014.23 The impact of the Future Group Report remains unclear. The initiative represented an attempt by Germany (and the former Vice-President of the Commission) to  Commission Communication, The Hague Programme: Ten priorities for the next five years – The Partnership for European renewal in the field of freedom, security and justice, COM(2005) 184, 10.5.2005, Brussels. 21   Refer to First Meeting of the Future Group, Report, retrievable from http://www.statewatch .org/news/2008/jul/eu-futures-may-report-2007.pdf. 22   The Future Group, Freedom, Security, Privacy – European Home Affairs in an Open World, Report at the Informal High Level Advisory Group on the Future of European Home Affairs Policy (‘The Future Group’), June 2008, available at www.statewatch.org For a critical analysis refer to T. Bunyan, The Shape of Things to Come – EU Future Report, Statewatch 2008, available at www.statewatch.org. 23   The Report expressly stated that ‘The findings and recommendations of the Future Group are meant to be an important contribution and a source of inspiration for the European Commission’s proposal for the next multi-annual programme in the field of Justice and Home Affairs.’ 20

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have an early influence over the upcoming EU’s agenda that was to be established by the third multiannual programme on AFSJ. Later, the French Prime Minister (Nicolas Sarkozy) along with the former Minister Brice Hortefeux (at that time responsible for the Ministre de l’Immigration, de l’Intégration, de l’Identité nationale et du Développement solidaire) planned the priorities of the French Presidency of the EU in the second half of 2008 from a similar perspective. The French Presidency (JuneDecember 2008) identified as one of its priorities the domain of migration and advocated for the adoption of the so-called European Pact on Immigration and Asylum, which was agreed by the Council in October 2008.24 The Pact was qualified as a clear expression of ‘nationalism’ and ‘intergovernmentalism’ in European cooperation around immigration, borders and asylum because of the importance that it allocated to the preservation of national competences in these domains and its attempts to bring about legitimacy to (and universalise at EU level) certain national policy responses and practices of particular member states at the EU level.25 The European Pact on Immigration and Asylum stated that ‘The Programme which will be the successor of the Hague Programme in 2010 will, in particular, enable the Pact to be transposed further into practical actions’. DG JLS of the Commission made also several ‘early’ contributions preceding the formal opening of negotiations on the Stockholm Programme by the Swedish Presidency during the second half of 2009.26 Its formal input to the Stockholm Programme did not arrive however until the June 2009 with the Communication ‘An area of Freedom, Security and Justice serving the citizen: Wider freedom in a safer environment’ (hereinafter ‘the 2009 serving the citizen Communication’).27 The document outlined concrete political priorities which in the Commission’s view ‘should guide’ the implementation of the new multiannual programme. Amongst its most innovative proposals,  Council of the EU, European Pact on Immigration and Asylum, 13440/08, Brussels, 24 September 2008. 25   S. Carrera and E. Guild, The French Presidency’s European Pact on Immigration and Asylum: Intergovernmentalism vs. Europeanisation? Security vs. Rights?, CEPS Policy Brief No. 170, September, Brussels: Centre for European Policy Studies 2008. 26   Commission Communication, A Common Immigration Policy for Europe: Principles, Actions and Tools, COM(2008) 359 final, 17.6.2008, Brussels. Commission Communication, Policy Plan on Asylum: An Integrated Approach to Protection across the EU, COM(2008) 360, 17.6.2008, Brussels. 27   Commission Communication, An area of Freedom, Security and Justice serving the citizen: Wider freedom in a safer environment, COM(2009) 262, 10 June 2009, Brussels. For an assessment refer to E. Guild and S. Carrera, Towards the Next Phase of the EU’s Area of Freedom, Security and Justice: The European Commission Proposals for the Stockholm Programme, CEPS Policy Brief No. 196, August, Brussels: Centre for European Policy Studies 2009. 24

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the  Communication included an immigration code, a joint coordination mechanism for integration policy of TCNs, the identification ‘in the longerterm’ of the principle of mutual recognition of asylum decisions, a common framework on labour immigration, a revision of the Directive on the right to family reunification, European guidelines for the implementation of regularisations, establishing common standards for taking charge of undocumented immigrants who cannot be deported, etc. The much awaited moment arrived in the second half of 2009 when the Swedish Presidency took officially over the task of elaborating the first draft and handling the negotiations among EU Member States on the third multiannual programme on the EU’s AFSJ. The negotiations inside the Council took place between September and November 2009. The Swedish Presidency aimed at increasing the transparency of the entire negotiation phase by publishing all the successive draft versions of the Stockholm Programme in its website. That level of ‘transparency’ only started as from the end of October due to the great cautiousness from the highest political EU circles concerning the potential negative implications that ‘publicizing’ the effects of the Treaty of Lisbon over AFSJ policies would have over the results of the referendum.28 The negotiations over Stockholm coincided with a sensitive period of transition for the future of the entire European integration project due to the pending status of the Lisbon Treaty, which only found a positive answer after the ‘yes vote’ resulting from the ‘Lisbon II referendum’ in Ireland on 2 October 2009. The Stockholm Programme ‘An Open and Secure Europe serving and protecting the Citizen’ programme was officially endorsed by the European Council in December 2009.29 The text of the programme started by making reference to the new post-Lisbon Treaty framework on the EU’s AFSJ and emphasized that ‘all the opportunities offered by the Lisbon Treaty to strengthen the European area of freedom, security and justice for the benefit of the citizens of the Union should be used by the Union institutions.’30 The priorities endorsed by the European Council varied from those outlined in the Hague Programme. The Stockholm Programme identified as its overarching priorities ‘the interests and needs of the citizens’ and the challenge to to ensure respect for fundamental rights and freedoms and integrity of the person while guaranteeing security in Europe. It is of paramount importance that

  The first draft of the Stockholm Programme was published on 16 October 2009. All the drafts are available at the website of the Swedish Presidency of the EU at http://www.se2009.eu. 29   Council of the EU, The Stockholm Programme: An Open and Secure Europe serving and protecting Citizens, 5731/10, Brussels, 3 March 2010. 30   Ibid., p. 9. 28

The Impact of the Treaty of Lisbon   239 law enforcement measures, on the one hand, and measures to safeguard individual rights, the rule of law and international protection rules, on the other, go hand in hand in the same direction and are mutually reinforced. (Emphasis added).31

This was combined with five priorities which served as the main Sections structuring the substantive shapes of the Stockholm Programme: First, promoting citizens’ rights: a Europe of rights; Second, making people’s lives easier: a Europe of law and justice; Third, a European that protects; Fourth, access to Europe in a globalised world; and fifth, a Europe of responsibility, solidarity and partnership in migration and asylum matters. The general policy guidelines included in the programme can be seen as a nostalgic ‘look back’ to the 1999 Tampere Programme’s ambitions and objectives. The Tampere spirit was combined with some sort of self-realization of the maturity of European cooperation on the EU’s AFSJ which was deemed to call for common strategies ensuring the full and effective implementation, enforcement and evaluation of existing instruments, as well as the coherency and consolidation of the existing body of European legislation. While a big deal of efforts were made during negotiations to reach consensus amongst EU member states around each specific policy proposal composing the Stockholm Programme, as we will outline in Section 3 below some of the policy initiatives that had been put forward by the Commission in its 2009 serving the citizen Communication were not taken on board. The Programme called the Commission … to present promptly an Action Plan in the first six months of 2010 to be adopted by the Council. This Action Plan will translate the aims and priorities of the Stockholm Programme into concrete actions with a clear timetable for adoption and implementation. It should include a proposal for a timetable for the transformation of instruments with a new legal basis.32

3.  The Stockholm Affair The new (Barroso II) Commission started functioning on 9 February 2010. DG JLS was split into two Directorates,33 one on Justice and another one on   Ibid.   Ibid., Point 1.2.10 of the Stockholm Programme. 33  Euractiv, Verhofstadt lists conditions for Barroso II, 15 July 2009, retrievable from www .euractiv.com The original idea of dividing DG JLS started from D. Bigo, S. Carrera and E. Guild, What Future for the Area of Freedom, Security and Justice? Recommendations on EU Immigration and Borders Policies in a Globalising World, CEPS Policy Brief No. 156, March, Brussels: Centre for European Policy Studies 2008. H. Lieber, Checks and Balances: Dividing 31 32

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Home Affairs, something which was seen would better reflect EU Member States ministerial scenarios.34 The strategy finally adopted by Barroso was to appoint two different Commissioners but still under one sole DG JLS. Reding was appointed Commissioner for ‘Justice, Fundamental Rights and Citizenship’ and Malmström Commissioner for ‘Home Affairs’. While at their hearings before the EP in January 2009 both Commissioners underlined their commitments for close working relationships,35 Reding’s priority to ‘mainstream’ fundamental rights on ‘Home Affairs’ dossiers apparently led to ‘turf wars’ between them. This was one of the factors favouring Barroso’s decision to formally divide DG JLS into two different DGs as from 2 July 2010.36 It was in this ‘period of transition’ inside DG JLS underlying the kick-off of the work by the new Commissioners (and their respective cabinets) that the Action Plan implementing the Stockholm Programme was formally discussed and finally adopted by the Commission. In April 2010 the Commission published the Action Plan implementing the Stockholm Programme titled ‘Delivering an area of freedom, security and justice for Europe’s citizens: Action Plan implementing the Stockholm Programme’.37 The political ambition of the Plan emerged from all its pores.38 The legislative timetable (concrete actions and initiatives) for 2010–2014 was presented in

the Directorate General for Justice, Freedom and Security in to two – an Interior and a Justice branch, CEPS Policy Brief No. 158, April, Brussels: Centre for European Policy Studies 2008. 34   H. Lieber, ‘The European Commission new Justice’s portfolio: Opportunities, goals and challenges, in E. Guild, S. Carrera and A. Eggenschwiller (eds), The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme, CEPS Paperback Book, Brussels: Centre for European Policy Studies 2010, pp. 18–22. 35  The content of the hearings before the EP (and the answers given by the respective Commissioners) are available in the following websites: http://www.europarl.europa.eu/ hearings/static/commissioners/cre/reding.pdf and http://ec.europa.eu/commission_2010 –2014/malmstrom/archive/malmstrom_hearing_en.pdf. 36   Refer to European Voice, A departmental split to end turf wars?, 10.6.2010, Brussels, www .europeanvoice.com. 37   Commission Communication, Delivering an area of freedom, security and justice for Europe’s citizens: Action Plan implementing the Stockholm Programme, COM(2010) 171 final, Brussels, 20.4.2010. The Communication started by saying that ‘The Stockholm programme adopted by the European Council in December 2009 sets the priorities for developing the European area of freedom, security and justice in the next five years. Its contents reflect the discussions with the European Parliament, the Council, Member States and stakeholders over the recent years. At its core are the ambitions the Commission outlined in its June 2009 Communication which led to the adoption of the Stockholm Programme’ (emphasis added). 38   The Commission stated that ‘The entry into force of the Lisbon Treaty enables the Union to demonstrate greater ambition in responding to the day-to-day concerns and aspirations of people in Europe’ (emphasis added).

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the Annex of the Communication. It was framed by the Commission as ‘indispensable and consistent with the scale of ambition the Union needs to demonstrate’ and which it … should not be seen as an agenda that is fixed once and for all. The Union must be able to react to unexpected events, swift in seizing opportunities and in anticipating and adapting to future trends. The Commission will therefore use its right of initiative whenever necessary to ensure this (emphasis added).

The change of strategy by the Commission in contrast with the one that it had played in the 2004 Action Plan implementing the Hague Programme and its ‘intergovernmentalised’ working methods consequence of the failure of some of its Tampere-led initiatives caused the emergence of unpleasant surprises amongst certain EU Member States representatives. The Plan was subject to heated debates inside the Council during the last phase of the Spanish Presidency of the EU. Some Council representatives went as far as qualifying the Action Plan as a clear ‘act of provocation’ and even as a ‘shameful practice’ by the Commission. Already at the JHA Council meeting of 23 April 2010,39 after hearing the presentation by the Commission, stressed ‘that the action plan should more closely mirror the objectives set out in the Stockholm Programme itself’ and asked its preparatory bodies to ‘swiftly start consultations on the action plan with a view to adopt it in June 2010.’ After a first exchange of views between the Counsellors at the end of April 2010, the Council decided to adopt Conclusions on the Communication. To this the Commission reacted with a Declaration where it stated that the Stockholm Action Plan was ‘in line with the objectives and the spirit set out in the Stockholm Programme and with the Resolution of the European Parliament of 25 November 2009’. Yet, the Declaration also underlined the Commission’s ‘readiness to table proposals as its sees necessary and appropriate’.40 What were the main points of divergence between the Programme and the Action Plan? First, the Commission put back the idea of the Immigration Code. The Action Plan said that by 2013 an Immigration Code would be proposed by the Commission focused on the Consolidation of legislation in the area of legal immigration taking into account  the evaluation of the existing legislation, needs for simplification and   Council of the EU, Justice and Home Affairs 3008th Council Meeting, Brussels, 23 April 2010, Press Release 8920/10 (Presse 88). 40   Refer to the Annex of the Council of the EU, Draft Council Conclusions on the Commission Communication ‘Delivering an area of freedom, security and justice for Europe’s citizens – Action Plan Implementing the Stockholm Programme, COM(2010) 171 final, 10118/10, Brussels, 28 May 2010. 39

.

242  Sergio Carrera where necessary extend the existing provisions to categories of workers currently not covered by EU legislation (emphasis added).41

Second, another point of friction was that of the mutual recognition of asylum decisions. The Action Plan envisaged a Communication on a framework for the transfer of protection of beneficiaries of international protection and mutual recognition of asylum decisions by 2014 and hence identified ‘mutual recognition’ as a long-term goal. The initiatives of the immigration code and the mutual recognition of asylum decisions had been both originally included by the Commission in its 2009 serving the citizen Communication and had been later on put aside by the Stockholm Programme due to the cold welcoming by certain EU Member States’ representatives. Third, the external dimension of migration policy constituted another matter of dispute. The Council considered that the 2010 Action Plan was too focused on Africa and not so much on the East and Central-eastern European countries. The fact that the Action Plan did not expressly mentioned the InterMinisterial conference on ‘Building Migration Partnerships’,42 and only referring to ‘Enhancing migration dialogue within the Eastern Partnership’ was seen as giving too much importance to ‘the African dimension’ of the so-called ‘Global Approach to Migration’. The controversy ended up with the JHA Council meeting of 3rd June 2010 which adopted Conclusions on the Commission Communication stating that43 Emphasizes strongly that the Stockholm Programme is the only guiding frame of reference for the political and operational agenda of the European Union in the Area of Justice, Security and Freedom. Notes however that some of the actions proposed by the Commission are not in line with the Stockholm Programme and that others, being included in

  Also in the field of ‘immigration’, the Stockholm Action Plan presented an initiative which was not originally part of the Stockholm Programme as endorsed by the European Council: i.e. a legislative proposal amending Directive 2002/90/EC defining the facilitation of unauthorized entry, transit and residence (‘and possibly merge with Framework Decision 2002/946/ JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence; and extending existing provisions’). 42  http://www.eu2009.cz/event/1/539. 43  Council of the EU, Justice and Home Affairs Council 3018th Meeting, Luxembourg 3–4 June 2010. Council of the EU, Draft Council Conclusions on the Commission Communi­ cation ‘Delivering an area of freedom, security and justice for Europe’s citizens – Action Plan Implementing the Stockholm Programme (COM (2010) 171 final), 9935/10, Brussels, 19 May 2010. 41

The Impact of the Treaty of Lisbon   243 the Stockholm Programme, are not reflected in the Communication of the Commission. Urges the Commission in this regard to take only those initiatives that are in full conformity with the Stockholm Programme in order to ensure its complete and timely implementation (emphasis added).

After the June JHA Conclusions, the Commission continued insisting in its right of initiative and its intention not to rigidly abide to the Council’s Programme.44 The institutional dispute therefore remains open. Apart from the above-mentioned specific cases, few EU officials interviewed for the purposes of this paper were actually able to identify in snapshot every precise mismatch between the Stockholm Programme and the Commission’s Stockholm Action Plan. Beyond the specific divergences between the two texts, the fundamental question lying at the heart of the Stockholm affair was that of ‘Whose Area of Freedom, Security and Justice?’ The institutional ownership over the policy agenda-setting and legislative strategy for the next five years was the issue at tension. The background of the conflict was also that of a direct clash between ‘Europeanisation’ and ‘intergovernmentalism’ around supranational configurations and structures in the EU’s AFSJ, which as we will outline in the next Section, had been substantially influenced after the entry into force of the Lisbon Treaty. 4.  The Impact of the Lisbon Treaty The Treaty of Lisbon introduced a renewed institutional and substantive landscape for European cooperation over the domains of migration, asylum and borders. It generated two different bodies of law: a revised version of the Treaty on European Union and the Treaty of the Functioning of the European Union (TFEU, which has taken over the former EC Treaty).45 The AFSJ has been considered to be amongst those areas where Lisbon has generated more far reaching overhaul. The changes have been said to mark a major (‘constitutionalising’) milestone in the evolution of the EU’s legal order.46 The main overarching innovations brought by the Lisbon Treaty on migration, asylum

  European Voice, Ministers criticize Justice and Home Affairs Plan, 3 June 2010, retrievable from www.europeavoice.com. 45   Treaty of Lisbon, Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ 2010/C 83/01, 30 March 2010. 46   B. Donelly, Justice and Home Affairs in the Lisbon Treaty: A Constitutionalising Clarification?, EIPASCOPE 2008/1, Maastricht: European Institute for Public Administration (EIPA) 2008, p. 19–23. 44

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and borders can be summarised as follows: First, the expansion of the ‘EU method of cooperation’ to the majority of these fields, the enlargement of the domains falling within the remits of EU competence and the consolidation of the powers by the European Commission (right of initiative); Second, the conversion of the EP into co-legislator and the strengthening of the role of national parliaments in the subsidiarity and proportionality check; and third, the extension of the jurisdiction of the Court of Justice of the EU in Luxembourg for giving preliminary rulings and scrutinizing European institutions and agencies working on these areas. All these changes need to be also horizontally examined from the perspective of the now legally binding nature of the EU Charter of Fundamental Rights,47 as well as the EU’s accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which represent seminal contributions by the Lisbon Treaty for strengthening the liberty and security of individual in the AFSJ and which have been covered by the Chapter of Peers in this book Our analysis will mainly cover the impact of Lisbon over the European Commission, which aims at facilitating a better understanding of the Stockholm affair. From this perspective, some effects of the empowerment of the EP and national parliaments will be also addressed.48 The effects of the liberalization of the competences of the Court of Justice on these domains are not part of our analysis as they fall beyond the context of the Stockholm affair. The following reforms have been introduced by the Lisbon Treaty: 1. The end of the First/Third Pillar Divide. One of the most celebrated outputs of the Treaty of Lisbon has been the end of the legal duality that used to structure European cooperation on the AFSJ. The classical dual normative framing of JHA cooperation raised concerns regarding the inefficiency, lack of transparency and legal uncertainty as well as weak democratic accountability and judicial control.49 The Lisbon Treaty has provided a (formal) answer to the adverse effects of the former pillar divide by streamlining a   Refer to Article 6 TEU. Charter of Fundamental Rights of the European Union, OJ 201/C 83/02, 30 March 2010, p. 389. E. Guild, Fundamental Rights and EU Citizenship after the Treaty of Lisbon, CEPS Liberty and Security in Europe Series, July, Brussels: Centre for European Policy Studies; S. Peers and A. Ward (eds), The EU Charter of Rights: Politics, Law and Policy, Oxford: Hart Publishing 2010. 48   Some of the effects of the liberation of the competences of the Court of Justice on these domains have not been included. On this point refer to Chapters X, W and Z of this Collective Volume. 49   E. Guild, S. Carrera and T. Balzacq, ‘The Changing Dynamics of Security in an Enlarged European Union’, in: D. Bigo, S. Carrera, E. Guild and R. Walker (eds), Europe’s 21st Century Challenge: Delivering Liberty, Farnham: Ashgate Publishing 2010, p. 31–48. 47

The Impact of the Treaty of Lisbon   245

unified general legal framework over these areas.50 There is now one sole Title in the Treaties covering the AFSJ (Title V TFEU, Articles 67–89),51 and the TFEU expressly identifies the latter as one of those areas where there is ‘shared competence’ between the EU and its Member States.52 As regards the fields of migration, integration, borders and asylum, the process of (de)pillarization has actually meant the consolidation in these areas of the EU method of cooperation (Article 294 TFEU) and of the right to initiate legislation in hands of the European Commission (as its key prerogative now envisaged in Articles 17.2 TEU and 289 TFEU).53 Moreover, the objective in the Treaties no longer aims ‘solely’ at ‘progressively establishing’ an AFSJ (former Article 29 TEU). Article 67.1 TFEU now goes further by stating that the goal is to ‘constitute an AFSJ with respect for fundamental rights and the different legal systems and traditions…’ of the Member States. 2. Bringing the Tampere Spirit into the body of the Treaties. The Tampere Programme had outlined an ambitious agenda for the development of common policies on migration, borders and asylum whose accomplishment has not materialised. The Lisbon Treaty has included several express references to some of the Tampere milestones. Some of the past ambitions have become foundational components of the EU Treaties. As a way of illustration, the TFEU stipulates the need to establish a ‘common policy on asylum, immigration and external border controls, based on solidarity between Member States, which is fair towards third country nationals’.54 This is a significant difference in contrast with the former language used by the EC Treaty, which did not allude anywhere to the development of a common policy but rather to ‘…flanking measures with respect to external border controls, asylum and immigration’. 3. External Borders. Policies on ‘external border checks’ are covered by the new Article 77 TFEU. For the first time the concept of ‘integrated   For a detailed overview of the pre-Lisbon institutional framework on JHA refer to S. Peers, EU Justice and Home Affairs Laws, Oxford: Oxford EC Law Library 2006. Refer also to S. Peers and N. Rogers (eds), EU Immigration and Asylum Law: Text and Commentary, Leiden: Martinus Nijhoff Publishers 2006. 51   Chapter 1 on ‘General Provisions’ and Chapter 2 on ‘Border Checks, Asylum and Immigration’. 52   Article 4.2.j TFEU. 53   However according to the new Article 289.4 TFEU ‘In the specific cases provided for by the Treaties, legislative acts may be adopted on the initiative of a group of Member States or of the European Parliament, on a recommendation from the European Central Bank or at the request of the Court of Justice or the European Investment Bank’. 54   There are more references for the Union to develop ‘a policy’ across Articles 77, 78 and 79 TFEU. 50

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­ anagement system for external borders’ has been introduced in the m Treaties, something which leaves the door open for the adoption of ‘any measure’ considered to be necessary for its gradual development.55 A new Article 77.4 TFEU has been also established which underlines EU Member States’ sovereignty in the geographical demarcation of their borders.56 4. Visas and ‘Other Documents’. One of the main implications of the Lisbon Treaty is that visa policy on lists and formats benefits now from QMV and co-decision (before the Lisbon Treaty QMV was also applicable but there was mere consultation with the EP). A new Article 77.3 TFEU has been added calling for the adoption of ‘measures on residence permits or any other such document’. This last provision constitutes the only exception to the application of the EU ordinary legislative procedure to external borders, immigration and asylum policies. A special legislative procedure will apply where the Council shall act unanimously after consulting the EP. 5. Asylum. Article 78 TFEU calls for the first time for the need to develop a common policy on ‘asylum, subsidiary protection and temporary protection, with a view to offering appropriate status to any third country national requiring international protection and ensuring compliance with the principle of non-refoulement’. Express reference has been made to the establishment of a common European asylum system based no longer on ‘minimum standards’ but rather by a ‘uniform status’ and ‘common procedures’. European cooperation on asylum already benefited from the ordinary legislative procedure since January 2005. Moreover, the Nice Treaty had introduced a new subparagraph 5 in former Article 67 EC Treaty granting the possibility to the Council to use the co-decision procedure to adopt asylum-related measures provided in the former Article 63.1 and 2.a EC Treaty ‘provided that the Council has, unanimously and after consultation of the European Parliament, adopted Community legislation defining the common rules and basic principles governing those issues’. 6. Immigration. EU policies dealing with legal or regular immigration fell outside the expansion of the 2004 Council Decision expanding the ordinary legislative procedure to Title IV EC Treaty. Lisbon has filled in that gap by extending the latter and QMV to these domains. A new Article 79.5 TFEU has been also incorporated which refers to the exclusive right hold by Member States ‘to determine the volumes’ of admission of TCNs coming to

  Article 77.2 TFEU.   On the specific amendments to the Schengen Protocols applicable to the UK, Ireland and Denmark refer to M. Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, not Hearts’, Common Market Law Review 45, 2008, p. 617–703.

55 56

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seek work. The Lisbon Treaty has in this way confirmed the existence of a legal competence by the EU to legislate in the field of labour immigration.57 The actual reach of the concept the right to determine volumes is far from evident. Moreover, and as Peers (2008) has rightly argued, Article 79.5 gives the competence to the EU for legislating on labour immigration policy covering ‘other aspects of the admission of economic migrants (such as the technical aspects of the admission process or the grounds of admission’. Furthermore, and as a consequence of the end of the Pillar divide, the provision dealing with a common immigration policy now includes for the first time an explicit legal competence on trafficking of human beings in Article 79.2.d TFEU. 7. Integration of TCNs. The new Article 79.4 TFEU provides for an express legal competence for the Union to develop ‘measures to provide incentives and support for the action of Member States with a view to promoting the integration of third country nationals residing legally in their territories’. The provision excludes the possibility for harmonization of the laws of the Member States and has therefore clarified the exclusion of EU’s legislative competence to harmonize national juridical systems in this field. Perhaps the most relevant implication of this provision is that it allows for the possibility to formalize the so-called ‘EU Framework on Integration’, which has been developed at Union level since 2002 and which already counts with a wide number of soft policy tools and networks, into a joint coordination mechanism or (pseudo) Open Method of Coordination (OMC).58 The Lisbon Treaty will also ensure that any future proposals adopted in this area will benefit from the ordinary legislative procedure, something, which will guarantee a proper democratic accountability of EU integration policy.59 8. The External Dimensions of immigration, borders and asylum policies. AFSJ policies increasingly present external dimensions aiming at bridging their   The two new proposals on seasonal employment and intra-corporate transferees have already used Article 79.2 (a) and (b) TFEU as legal basis. Proposal for Directive, on conditions of entry and residence of third country nationals in the framework of an intra-corporate transfer, COM(2010)378, Brussels, 13.7.2010. Proposal for Directive, on the conditions of entry and residence of third country nationals for the purposes of seasonal employment, COM(2010)379, 13.7.2010, Brussels. 58   V. Hatzopoulos, ‘Why the Open Method of Coordination is Bad for You: A Letter to the EU’, European Law Journal, Vol. 13, Issue 3, May 2007, pp. 309–342. 59   S. Carrera, In Search of the Perfect Citizen? The Intersection between Integration, Immigration and Nationality in the EU, Leiden: Martinus Nijhoff Publishers 2009. See also E. Guild, K. Groenendijk and S. Carrera (eds), Illiberal Liberal States: Immigration, Citizenship and Integration in the EU, Farnham: Ashgate 2009. 57

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internal facets with external relations through the conclusion of inter­ national agreements. Policies on immigration, borders and asylum are progressively subject to various externalisation processes.60 Another innovation consequence of the Lisbon Treaty has been the attribution of express  legal competences for the Union to continue developing these ‘external dimensions’. As a way of illustration, the EU has gained an express legal power to conclude agreements with third countries in the area of irregular immi­gration (readmission agreements)61 as well as on asylum.62 This could potentially lead to a future exclusive EU competence around certain administrative aspects falling within the scope of these domains where the Union would have taken action (or exercised its competence) or when the matter would have achieved a stage of full harmonisation.63 The recognition of EU’s competence to legislate on ‘the internal dimension’ of labour immigration policy has also opened the window for the Union to engage on the basis of implicit external legal competence on issues of labour immigration in its relations with third countries, something which is de facto already taking place (but outside the scope of European or international law) in the context of the so-called Mobility Partnerships. These partnerships constitute ‘soft (non-binding) policy’ tools in the form of Declarations. Three have been so far concluded with Cape Verde, Moldova and Georgia.64 9. Solidarity. Articles 67.2 and 80 TFEU have brought into the EU Treaties a direct reference to ‘the principles of solidarity and fair sharing of respon­ sibility’. In particular, Article 80 TFEU states that migration, asylum,

 T. Balzacq (ed.), The External Dimension of EU Justice and Home Affairs: Governance, Neighbours, Security, Palgrave Studies in European Union Politics, London: Palgrave. 61   Article 79.3 TFEU. N. Coleman, European Readmission Policy: Third Country Interests and Refugee Rights, Leiden: Martinus Nijhoff Publishers 2009. 62   Article 78.2 TFEU. 63   Refer also to Article 3.2 TFEU. However, due consideration needs to be also made to the implication of the use that will be made of Protocol No. 25 and Protocol No. 36 annexed to the TFEU. Refer to G. De Baere, The Framework of EU External Competences for Developing the External Dimensions of EU Asylum and Migration Policy, Working Paper No. 50, Leuven Centre for Global Governance Studies, Katholieke Universiteit Leuven, May 2010. 64   For an analysis refer to S. Carrera and R. Hernandez, ‘Mobility Partnerships: ‘Insecurity Partnerships’ for Policy Coherence and Migrant Workers’ Human Rights in the EU’, in: R. Kunz, S. Lavanex and M. Panizzon (eds), Multilayered Migration Governance: The Promise of Partnership, Routledge, forthcoming 2011. Refer also to S. Carrera and R. Hernandez, The Externalisation of the EU’s Labour Immigration Policy: Towards mobility or insecurity partnerships?, CEPS Working Document No. 321, October, Brussels: Centre for European Policy Studies 2009. 60

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integration and border checks policies ‘shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial impli­ cations, between the Member States’ and offers the possibility to the EU to adopt measures giving effect to this principle. The actual scope and content  of these principles, and the ways in which they could materialize into specific legislative proposals, remains unset and open to creative thinking. Until present the main ‘solidarity-based’ contribution at EU level has been in the scope of general EU funding programme on ‘Solidarity and Management of Migration Flows’.65 10. Strategic Guidelines on the AFSJ. A new Article 68 has been introduced in the TFEU, which states that it is for the European Council to define the strategic guidelines for legislative and operational planning within the AFSJ. This constitutes an explicit entitlement in hands of the European Council to endorse the multiannual programmes framing EU’s policy agenda on the AFSJ. One could be tempted to conclude that this provision  has clarified ‘who is in charge’ of setting the policy and legislative agenda on the AFSJ. Yet the Stockholm affair clearly illustrates that this is far from being the case. Indeed, it would be difficult to argue that this legal provision impedes the European Commission to develop more ‘ambitious’ legislative and operational planning in these areas, together with the EP. It would all in all very much depend on the actual interpretation of the nature and reach of the ‘guidelines’, and how specific and ‘mandatory’ these are supposed to be. To these reforms, we need to add the repercussions that the Lisbon Treaty will exert over their democratic accountability. The EP has been recognized ‘an equal say’ to the Council through the expansion of the EU ordinary legislative procedure and the formalization of its binding consent in a larger number of areas. The changing dynamics affecting the role of the Commission in the first half 2010 came along an entirely new EP (since September 2009). Not only the Commission started to behave ‘differently’ after Lisbon, but both the Council and the Commission were also taken ‘by surprise’ when the EP voted down on 11 February 2010 the so-called ‘SWIFT agreement’ between the EU and the USA because of concerns related to its compliance with the European system

  Council Decision No. 573/2007, establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’ and repealing Council Decision 2004/904/EC, 23 May 2007, OJ L144/1, 6.6.2007. The programme includes four different kinds of funds: the external borders funds, the integration fund, the return fund and the refugee fund. For more information: http://ec.europa.eu/ justice_home/funding/intro/funding_solidarity _en.htm.

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of data protection and the principle of proportionality.66 The EP has been qualified as ‘the winner’ of the Lisbon Treaty.67 One of the most important consequences of the expansion of the EU method of cooperation has been that the JHA Council and the EU Member States do no longer dictate and unilaterally decide the rules and substance of the European integration games. The EP is now an ‘equal partner’ through its mutation into co-legislator and the strengthening of its competences in areas where before it used to have ‘no voice’, such as the external dimensions of AFSJ policies (i.e. cooperation with third countries). This has been come along with the conferral of an enhanced role to national parliaments which will take part in the evaluation of AFSJ policies, a greater control of national governments on their EU strategies on these domains as well as a reinforced control mechanism of the principle of subsidiarity (the early warning system or ‘yellow card procedure’).68 This might potentially consolidate the EP’s position vis-à-vis the Council and EU Member States, should a proper and efficient interparliamentary strategy and oversight approach be developed.69 Also, as Auel (2010) has argued,70 a look at some of the reasoned   Council Decision 2010/16/CFSP/JHA, on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program, OJ L 8/9, 13.01.2010. The Report by Jeanine Hennis-Plasschaert’s, adopted by the EP’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) on 4 February 2010, P7_TA-PROV(2010)0029. 67   P. Craig, ‘The Role of the European Parliament under the Lisbon Treaty’, in: S. Griller and J. Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty, Wien: Springer-Verlag 2008, p. 109–133. 68   Refer to Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality, see in particular Articles 6 and 7. House of Lords, European Union Committee, The Treaty of Lisbon: An Impact Assessment, 10th Report of the Session 2007–2008, HL Paper 62-I, 13 March 2008. 69   The EP Resolution on the Stockholm Programme stated that ‘…it would be worth creating a permanent forum of representatives at political level (two per Chamber + two substitutes) meeting twice a year and sharing a common workspace where all the information dealing with the AFSJ, including that of a restricted nature, could be shared in real time; considers also that the representatives of the national parliaments should be allowed to attend Parliament’s proceedings at committee level and during Parliament’s annual debate on the progress of the AFSJ’. Paragraph 13 of the Resolution. Refer to E. De Capitani, ‘The Democratic Accountability of the EU’s Area of Freedom, Security and Justice Ten Years On’, in: E. Guild, S. Carrera and A. Eggenschwiler (eds), The Area of Freedom, Security and Justice Ten Years On: Successes and Future Challenges under the Stockholm Programme, Brussels: Centre for European Policy Studies 2010, p. 23–30. 70   K. Auel, ‘Missing the Point: The Decision of the German Constitutional Court on the Lisbon Treaty and the Democratic Deficit of the EU’, in K. Auel and J. Baquero Cruz, Karlsruhe’s 66

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opinions so far issued by some national parliaments in the Interparliamentary EU Information Exchange database (IPEX),71 shows that while not finding a breach with the principle of subsidiarity, the subsidiarity check is actually allowing them to put forward their concerns on the legislative proposals at hand, something which might increasingly facilitate the channelling of their views to the negotiation phases of initiatives and therefore become actors in the wider EU legislative system. The EP’s role in the implementation and ‘future shapes’ of both the Stockholm Programme and the Commission’s Action Plan will be decisive and has surely influenced the entire Stockholm affair. The new Commis­ sioners on Justice and Home Affairs were perfectly aware of that from the start of their mandates.72 The EP had adopted its contribution to the Stockholm Programme in a form of a Resolution on the 25 November 2009. The Resolution stated that the EP reserved ‘the right to come back with specific proposals when it is consulted on the legislative action programme’ and called the Commission .. to bring coherence in this policy area, whilst taking account of the Union’s new missions and roles as well as of the new legal framework offered by the Treaty of Lisbon, starting with areas considered as priorities in agreement with the European Parliament; reminds the Commission that Parliament will assess its commitments on this during the forthcoming Commissioner hearings; asks the Commission therefore to state clearly, on a case-by-case basis, which proposals it intends to codify or recast, and reserves the right to make full use of its power to amend legislation; (Emphasis added).

Europe, Notre Europe, July 2010, retrievable from www.notre-europe.eu. On the potentials of the Lisbon Treaty to raise ‘European awareness’ among national parliamentarians and to make them use of the powers they already hold refer to P. Kiiver, ‘The Treaty of Lisbon, the National Parliaments and the Principle of Subsidiarity’, Maastricht Journal of European and Comparative Law, 2008, Vol. 15, p. 77–83. 71  http://www.ipex.eu/ipex. 72   At the presentation of the 2010 Commission’s Action Plan before the LIBE Committee on 10 May 2010, Commissioner Malmström said that ‘I take this opportunity to underline, that the Commission would also appreciate to hear the EP’s views on the [Stockholm] Action Plan, even if this were only possible after the adoption of Council conclusions in June. It would be a valuable contribution to the overall discussion on the Action Plan and its future implementation…I want to work closely with you to try to move forward on these complicated but extremely important issues. I look forward to a fruitful collaboration over the coming years’ (emphasis added). C. Malmström (2010), Speech before LIBE Committee The Committee on Civil liberties, Justice and Home Affairs (LIBE) of the European Parliament Brussels, 10 May 2010, SPEECH/10/235.

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5.  Conclusions and Reflections on the Future of the EU’s Immigration,

Borders and Asylum Policies

This Chapter has examined the institutional clashes which have taken place between the Council and the European Commission around the Stockholm affair. The struggles over the ownership of the Stockholm Programme have served as case study at times of assessing and understanding the impact that the reforms introduced by the Lisbon Treaty are exerting over the AFSJ and its policies on migration, borders and asylum. While the actual scope of the specific legal inputs of the new EU Treaties over these specific domains might be seen to be limited, the combination of these changes with the new institutional architecture resulting from the Treaty of Lisbon makes the impact salient. The Stockholm affair needs to be interpreted beyond an anecdotal event in the power games at EU level, but rather as a tangible effect of the ways in which the new substantive and institutional scenario resulting from the Lisbon Treaty on the AFSJ have affected the current and future relationship between Europeanisation and intergovernmentalism in these policy domains. The entry into force of the Lisbon Treaty has brought a renewed Treaty-based framework affecting the classical institutional struggles and relational power architecture around AFSJ policies. EU institutions are now trying to find their ways and learning to navigate over a more plural, supranational and democratic sea of European-policy making on AFSJ-policies. The final port of destination however remains to be discovered. The application of the EU ordinary legislative procedure implies that the JHA Council is no longer the sole actor ultimately and unilaterally deciding policy priorities and legislative outputs. Moreover, the QMV rule is also expected to transform the role that certain powerful EU Member States have traditionally played during the negotiations of certain Commission’s legislative proposals under the former unanimity voting scenario. The ownership over ‘the rules of the game’ has been therefore liberalised and democratized. The power to act by the European Commission has been consolidated and in certain areas substantially reinforced. This has been most especially the case in the scope of (legal and labour) immigration, but also in what concerns the express references now part of the Treaties calling for a common system, procedures and uniform status in the field asylum and a common policy on subsidiary and temporary protection. The legal basis for the Union to enter into international agreements on irregular immigration and asylum also constitute another example of the expansionism inflicted by the Lisbon Treaty into the boundaries of EU’s AFSJ competences. The impact of concepts such as ‘integrated border management’ and ‘solidarity and fair sharing of responsibilities’ should not be either underestimated, as they will potentially allow for

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far-reaching legislative and/or institutional proposals in these domains. Moreover, the explicit legal competence for the Union to develop a joint coordination mechanism in the field of integration of TCNs constitutes a major support by the Treaties to the development of ‘common policies’ on integration not only through classical harmonisation and EU law making methodologies, but also on the basis of coordination mechanisms fostering the exchange of practices and evaluation of Member States national policies in the context of various versions of OMC. The Commission counts with a new legal and decision-making framework  for delivering initiatives which, while perhaps not fully meeting the expectations of certain EU Member States, might however pursue a European added value. The strengthened role of the EP and the new functions attributed to national parliaments are also expected to further foster the influence that ‘the EU’ is expected to develop over these fields. From this viewpoint the Stockholm affair might be seen as a symptom of a healthier status of European cooperation on AFSJ post-Lisbon Treaty. It is to be hoped that the ‘Commission’s ambition’ will translate into a high-standard law and policy decision-making in its own internal working arrangements. The enactment of common legislative initiatives should no longer be driven by a strategy aiming at anticipating (and fearing) the reactions and expectations by powerful EU Member States inside the Council rooms, but rather by one driven by ‘the European interest’ that need to be substantiated and built upon a more plural and democratic decision-making setting in the EU’s AFSJ. For this to be achieved, the Commission will not only count with traditional law-making tools for achieving the goals outlined in its Stockholm Action Plan during the next five years, but also other ‘alternative’ governance mechanisms fostering Europeanization through other means. The way new tracking methods and evaluation/coordination mechanisms (such as the one that has been developed in the European Pact on Immigration and Asylum) constitute an emerging dimension of European integration in this area calls for close scrutiny and academic attention in the future. Time will only tell the actual ways in which the level of ‘ambition’ that the new Commissioners for Home Affairs and Justice have promised to practice during the next five years will materialise into practice. It is certain that the second phase of the AFSJ has been donated with a solid Treaty-based setting allowing for the development of ‘better’ European policies and more plural decision-making strategies on immigration, borders and asylum favouring  rule of law, democracy and fundamental human rights of individuals. The political elements of the European integration project, which are firmly embedded into European cooperation in domains such as those addressed in this Chapter, count now with a renewed normative board allowing for

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c­ ommon European policies pursuing more plural, diverse and heterogeneous interests than those purely inspired by nationalistic and intergovernmental sentiments. It is finally expected that the new institutional pluralism characterizing the AFSJ after Lisbon will consolidate the foundations of the latter over the inalienability and protection of the liberties and fundamental rights of the individuals who constitute the final addressees and beneficiaries of these very policies, and who should be therefore seen as the final owners of the Stockholm Programme.

Common EU Standards on Asylum – Optional Harmonisation and Exclusive Procedures? Jens Vedsted-Hansen 1.  Background: The Tampere Aspirations In attempting to assess the achievements of the legislative programme laid down in Title IV of the EC Treaty, as amended by the 1997 Amsterdam Treaty, the natural point of reference would seem to be the aspirations pronounced by the Tampere European Council in October 1999. In Conclusion 13, the European Council here reaffirmed ‘the importance the Union and Member States attach to absolute respect of the right to seek asylum’ and agreed to work towards establishing ‘a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of nonrefoulement.’1 The more operational Conclusion 14 outlined the Common European Asylum System in this manner: This system should include, in the short term, a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status. It should also be completed with measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection….2

While the general spirit of these Tampere Conclusions could reasonably be considered quite ambitious and protection-oriented, the particrular objective of the harmonisation of asylum procedures per se was relatively modest. The ‘fair and efficient’ standard is in itself reflecting a balance between the individual and the state’s interests, and the notion of ‘fairness’ is flexible enough to allow for compromises with the potentially strong demand for efficiency. Notably, however, the other elements of the Common European Asylum System will necessarily require that the procedural standards guarantee a   Presidency Conclusions – Tampere European Council, 15–16 October 1999, SN 200/99, p. 3 (italics added). 2   Ibid., p. 4 (italics added). 1

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relatively high level of protection in order to ensure that substantive harmonisation becomes effective. Against that background, this article discusses the interdependence and the differences between some of the core EU asylum standards that were adopted within the transitional period of five years following the entry into force of the Amsterdam Treaty, as extended because of the difficulty of obtaining agreement on the minimum standards on asylum procedures. The very fact that the Directive on asylum procedures3 was only adopted beyond the May 2004 deadline, due to disagreements concerning a number of controversial issues, illustrates the point that genuine harmonisation was likely to fail in the Amsterdam acquis, given the requirement of unanimity under Article 67 TEC. Since this problem has been particularly apparent in the area of asylum procedures, some regulatory characteristics will be discussed with a view to suggesting explanations of the highly differing degrees of harmonisation between the various types of asylum standards. The interrelationship between the common EU standards on procedural and substantive aspects of protection can arguably be viewed on the basis of both law and policy considerations. Hence, the Dublin Regulation allocating responsibility for the examination of asylum applications4 presupposes that all EU Member States comply with certain standards of protection in order to avoid arbitrary differences of treatment, and to reduce the risk of secondary movements between Member States. Although in slightly different wording, the latter policy objective has been expressly stated in the preambles of all the asylum-specific Directives.5 Legal norms reinforce this policy objective concerning the interrelationship between substantive and procedural standards, simply because incomplete harmonisation may in reality allow for certain

  Directive 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (Asylum Procedures Directive). 4   Regulation No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national. 5   Directive 2001/55 of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, recital 9. Directive 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum seekers, recital 8. Directive 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, recital 7. Directive 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, recital 6. 3

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Member States’ domestic standards to go below the minimum level of protection according to existing international treaties, in particular the Refugee Convention and the European Convention on Human Rights. As recent experience has confirmed, this may result in successful legal proceedings in order to prevent the return or transfer of individual asylum applicants to such sub-standard Member States. Such developments might in turn undermine the efficient functioning of the Dublin mechanism, as will be pointed out below in section 6. In any event, the fulfilment of the Tampere objectives of full and inclusive application of the Refugee Convention and safeguards maintaining the principle of non-refoulement clearly presupposes that EU standards on asylum procedures provide the necessary safeguards to ensure correct application of the substantive protection norms. Let us first consider some of the critical issues and regulatory characteristics pertaining to the harmonisation of asylum procedures, following which we shall compare with certain other asylum standards. 2.  The Optionalist Asylum Procedures Directive The structural interrelationship between the various types of asylum standards to be adopted was recognised by the European Commission in its early working document on the harmonisation of asylum procedures under the Treaty of Amsterdam. Here the Commission emphasised that common minimum standards would support several objectives, not least due to the Dublin mechanism for allocation of responsibility among Member States. In the first place, they were considered necessary in order to ensure that any individual asylum applicant would receive the same decision irrespective of the Member State in which he or she lodges the asylum claim. Second, in line with the abovementioned policy objective, it was stated that common minimum standards would have a role to play in preventing secondary migration of asylum applicants between Member States.6 Against this background, the outcome of the legislative process during the five-year period stipulated by Article 63 TEC (1 May 1999–2004) is rather surprising. As regards the harmonisation of standards on asylum procedures, the Commission’s initial Directive proposal was based on a clear distinction between decisions on admissibility to the asylum procedures and the substantive decisions on refugee status and protection need of the applicant, once

  Commission working document: Towards common standards on asylum procedures, 3 March 1999, SEC (1999) 271 final, p. 6.

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admitted into the procedure.7 There was, however, severe criticism against the proposal – not least due to a rather complex review and appeal system – which resulted in the Commission being requested to submit an amended proposal.8 The amended Directive proposal abandoned the clarity in distinguishing between formal admissibility and the substantive examination of applications, and generally lowered the procedural standards.9 These regulatory weaknesses were exacerbated during the drafting process within the JHA Council, as reflected in the text that was provisionally approved in November 2004 and formally adopted in December 2005.10 The Directive does provide a number of basic principles and guarantees that shall be afforded asylum applicants, such as the right to remain in the Member State pending the examination, standards for the determining authorities and their personnel, procedural guarantees for the examination and decision-making, including legal assistance and representation, personal interview and stating of reasons in negative decisions, as well as obligations of the asylum applicants.11 This notwithstanding, the Directive must be said to fail the objective of effectively harmonising procedural standards. The most important weaknesses, potentially jeopardizing the protection of asylum applicants and refugees, are: –  The wide scope of inadmissible applications, resulting in extensive powers for Member States to refuse access to asylum procedures. The first problem here is the various types of inadmissible cases listed in Article 25 of the Directive, including cases under the Dublin Regulation which may be referred to another Member State, and cases in which a third state is considered the ‘first country of asylum’ or as a ‘safe third country’. Decisions concerning first country of asylum would normally seem to require substantive examination of the case, and the definition of this concept in Article 26   Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, 20 September 2000, COM (2000) 578.  8  See Steve Peers: ‘Key Legislative Developments on Migration in the European Union’, European Journal of Migration and Law, Vol. 3, No. 2 (2001), p. 240, and Vol. 4, No. 3 (2002), p. 344–345.  9   Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, 18 June 2002, COM (2002) 326. See critically Steve Peers: ‘Key Legislative Developments on Migration in the European Union’, European Journal of Migration and Law, Vol. 5, No. 1 (2003), p. 109–112. 10   Council document: Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, 9 November 2004, 14203/04 – ASILE 64. Approved by the JHA Council 19 November 2004, subject to reconsultation of the EP, and formally adopted as Directive 2005/85 of 1 December 2005. 11   See Directive 2005/85, Chapter II, laying down the detailed rules in Articles 5–22.  7

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of the Directive does in fact necessitate an individual assessment, albeit in practice rather summary. – Similarly, Article 27 defines the safe third country concept in a manner which is less than well-founded, and in various respects indeed open to criticism, primarily due to the ambiguous stipulation of the individual examination of whether the third country concerned is safe for the particular asylum applicant. Thus, the minimum requirement – that the applicant shall be permitted to challenge the application of the ‘safe third country’ concept on the grounds that he or she be subjected to torture, cruel, inhuman or degrading treatment or punishment in that country – is not only minimalist, but also at variance with the general criteria for ‘safe third countries’ stipulated in the same Article.12 –  The implicit inadmissibility under the notion of European safe third countries – socalled ‘supersafe third countries’ – allowing for refusal of the examination in substance of asylum applications submitted by persons entering through certain European countries not (yet) members of the EU. Such countries were to be designated on a common list of such non-EU countries that should be regarded as ‘safe third countries’ for this particular purpose, according to rather formalistic criteria stipulated in Article 36. Notably, however, Article 36 (3), providing the legal basis for this common list, was annulled by the European Court of Justice, due to infringement of the legislative competences as laid down in Article 67 (5) TEC, and the Council’s consequent lack of competence to enact the common list under Article 36 (3).13 –  The extended scope of ‘safe countries of origin’, which were intended to be designated not only by Member States according to national legislation, but also through a minimum common list that should be adopted by the JHA Council. For this purpose Articles 29 and 30 of the Directive is supplemented by an Annex laying down the criteria for the designation of ‘safe countries of origin’, primarily related to the general legal and political situation in such countries.14 In the drafting process this was concretized in a   Directive 2005/85, Article 27 (2) (c), cf. Article 27 (1) (a)–(d).   European Court of Justice, Grand Chamber judgment of 6 May 2008, case C-133/06 European Parliament v. Council of the European Union. 14   Annex II to the Directive: Designation of safe countries of origin for the purposes of Articles 29 and 30 (1). Importantly, Article 30 (2) permits Member States to derogate from the criteria laid down in Annex II if they want to retain legislation in force on 1 December 2005 that allows for the national designation of third countries, other than those appearing on the minimum common list, as safe countries of origin provided they are satisfied that persons in the countries concerned are generally neither subject to persecution nor torture or inhuman or degrading treatment or punishment. 12 13

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statement to the Council minutes suggesting that countries such as Romania, Bulgaria, Benin, Botswana, Cape Verde, Ghana and Senegal might be suitable for inclusion on the minimum common list of safe countries of origin.15 However, the JHA Council apparently gave up reaching agreement on such a list, and postponed the decision till the abandonment of the unanimity requirement.16 In any event, the legal basis for this minimum common list was annulled by the European Court of Justice in the same judgment as mentioned above, holding the Council to be lacking of competence to enact the minimum common list under Article 29 (1) and to amend it under Article 29 (2), and consequently annulling these two provisions.17 –  Accelerated procedures. While the Commission initially intended to modify the concept of ‘manifestly unfounded’ asylum applications in order to narrow the scope of application of accelerated procedures, the adopted Directive allows for extensive application of such procedures. This follows partly from the optional provision in Article 23 (4) permitting Member States to lay down national rules for such procedures to cover a wide number of situations, partly from the introduction in Article 24 of ‘specific procedures’ derogating from the basic principles and guarantees laid down in Chapter II of the Directive. –  Such ‘specific procedures’ may be implemented not only for the preliminary examination of subsequent applications according to Articles 32 and 34 of the Directive, and for the examination, if any, of asylum applications submitted by persons entering through a European ‘supersafe third country’ according to Article 36, but also in the summary processing of cases considered within border procedures. Thus, Article 35 (2) permits derogations from the basic principles and guarantees according laid down in Chapter II of the Directive, if examination takes place in the context of decisions on entry into the territory at the border or in transit zones. As derogations were permissible on the basis of national legislation in force on 1 December 2005, i.e. the date of the adoption of the Directive, the scope of such existing national rules may have been extended during the extended process of drafting the Directive.   Council document: Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, 23 April 2004, 8415/04 - ASILE 30, Annex II. 16   Cf. Statewatch press release of 27 September 2004: EU divided over list of ‘safe countries of origin’ – the list should be scrapped. 17   European Court of Justice, Grand Chamber judgment of 6 May 2008, case C-133/06 European Parliament v. Council of the European Union. 15

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– The Directive provides only limited safeguards regarding appeal against negative decisions. In particular, and most critically, there is no right to suspensive effect of appeals, as Article 39 (3) makes deference to Member States’ domestic legislation in this regard. The stipulation that national rules shall be in accordance with international obligations is hardly sufficient to secure the exercise of the right to suspensive effect. This essentially leaves it up to Member States to decide the modalities and the extent to which the required ‘effective remedy’ shall be in compliance with international standards, notwithstanding the fact that these standards undoubtedly require States to grant suspensive effect in a large proportion of the cases dealt with by the Directive. It does not take lengthy explanations to conclude that such procedural arrangements imply serious risks for the legal safety of the affected individuals. In certain circumstances this may result in summary examination of the need for international protection, even tantamount to sham procedures.18 This is particularly worrying because certain EU Member States that are implementing these optional provisions applied similar practices, potentially jeopardizing refugee protection, already before the Directive entered into force. Other Member States have had little experience with procedural safeguards for asylum applicants and may for that reason be particularly vulnerable to such a fragile legal framework. In sum, by permitting the quite extensive introduction of sub-minimum standards the Directive provides no effective guarantees for the thorough examination of individual applicants’ need for international protection. Thereby the Directive, and the asylum procedures that may be adopted or retained within this framework of EU harmonisation, illustrate the potential undermining of substantive protection norms inherent in the failed harmonisation of procedural standards. 3.  Diverging Harmonisation Strategies – Diversification or Evasion? The vast amount of optional derogations from the minimum standards of the Asylum Procedures Directive can probably be explained as a logical consequence of the unanimity requirement: Any Member State was in a position to insist on derogation possibilities, allowing it to retain or even introduce   Similar criticism was voiced against pre-Amsterdam instruments in this regard, cf. Gregor Noll and Jens Vedsted-Hansen, ‘Non-Communitarians: Refugee and Asylum Policies’, in: Philip Alston (ed.), The EU and Human Rights, Oxford: Oxford University Press 1999, p. 359–410.

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particular domestic procedures, by the mere threat of vetoing the adoption of the Directive proposal. At the same time, however, a comparison between this Directive and other EU asylum instruments that were adopted in the first phase of the Common European Asylum System shows highly diverging degrees of harmonisation that would seem to call for further reflection of possible underlying reasons. Thus, already in 2001 Member States agreed on relatively high protection standards in the Temporary Protection Directive.19 The 2004 Qualification Directive20 can be considered generally respectful to the international standards under the Refugee Convention, although the adopted Directive did not remedy the (modest) problems in the Commission’s Directive proposal, and the negotiating process within the JHA Council was marked by significant restrictions of the definitional provisions and the introduction of controversial exclusion provisions.21 Nonetheless, the adopted Qualification Directive at least appeared capable of ensuring harmonisation of a number of definitional aspects, as well as certain standards of treatment for persons under subsidiary protection.22 On the contrary, the Asylum Procedures Directive includes a considerable number of optional provisions permitting extensive derogations from the minimum standards adopted. What could then be the underlying interest of Member States in accepting a relatively high degree of harmonisation in some policy areas, while in other areas insisting on the deference to domestic legislation, thereby in effect undermining the minimum harmonisation that was indeed stipulated by Article 63 TEC? Arguably, the explanation could be based on a combination of regulatory tradition and calculated evasion.

  Council Directive 2001/55 of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (Temporary Protection Directive). 20   Council Directive 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Qualification Directive). 21   Cf. Jens Vedsted-Hansen: ‘Assessment of the Proposal for an EC Directive on the Notion of Refugee and Subsidiary Protection from the Perspective of International Law’, in: Daphné Bouteillet-Paquet (ed.), Subsidiary Protection of Refugees in the European Union: Complementing the Geneva Convention?, Brussels: Bruylant 2002, p. 57–78; Steve Peers, ‘Key Legislative Developments on Migration in the European Union’, European Journal of Migration and Law, Vol. 5, No. 3 (2003), p. 393–398. 22   As it will appear below in sections 4 and 5, this expectation has proven not to be entirely realistic. 19

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As regards the definitional provisions, implementation will to a considerable extent occur indirectly and opaquely in the practices of Member States’ asylum authorities. Similar to the Refugee Convention definition, the interpretation and application of the Qualification Directive may often be intertwined with the concrete assessment of individual cases in which evidentiary issues play a major role. This is likely to reduce transparency in the implementation of this Directive in so far as a considerable part of the problems in that respect will hardly become apparent as general problems of interpretation. In addition to the inevitable intersection between interpretive and evidentiary elements of the decisions, domestic norms and practices limiting judicial review may exacerbate the transparency problem.23 As a result, it may become difficult to demonstrate if Member States indirectly deviate from the minimum standards laid down in the Qualification Directive regarding the definition of persons in need of protection. Thus, tacit expectations of a certain lack of transparency in the implementation of this Directive might be seen as one of the possible reasons why a relatively high degree of harmonisation was accepted in this area. The fact that the Qualification Directive is generally based on existing international obligations may obviously have been an additional factor influencing the degree of harmonisation in the standards adopted. The Asylum Procedures Directive is operating, and was intended to operate, in circumstances significantly different from those prevailing in the implementation of definitional standards. This Directive governs administrative and procedural matters for which it is more transparent and more readily controllable whether the minimum requirements have been complied with by Member States. Bluntly speaking, Member States simply will not have the same possibilities to ignore or evade minimum standards in this regulatory area, because any administrative or procedural arrangement at variance with the Directive would be likely to be discovered both by the affected individuals and by those bodies controlling the implementation of EU law. This might explain why Member States took advantage of their right of veto inherent in the unanimity requirement to insist on a vast amount of exceptions or derogations in order to ensure the possibility of retaining peculiarities in domestic asylum procedures. In addition, as compared to the substantive provisions of the Qualification Directive, there are relatively few international obligations binding on Member States pertaining to asylum procedures, due to the different administrative and judicial traditions of States parties to the Refugee Convention. As discussed below in section 6, however, this is quite another

  Cf. Gregor Noll (ed.), Proof, Evidentiary Assessment and Credibility in Asylum Procedures, Leiden: Martinus Nijhoff Publishers 2005.

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matter as far as the harmonisation of subsidiary protection is concerned, given the existing human rights standards even in respect of effective remedies. 4.  Reconsideration of the Impact of Regulatory Differences While the general characteristics of the Asylum Procedures Directive, distinctive in comparison to the other Directives adopted during the first phase of the Common European Asylum System as discussed above, would still seem to be valid, the varying degree of harmonisation must be seen as the result of complex interaction of a variety of factors. The regulatory characteristics are obviously only part of the explanation of the differing asylum standards in law and practice. Thus, the abovementioned factors need to be reconsidered, and wider aspects should be included into the analysis. In this connection, experience from the first period of time since the implementation deadlines under these Directives may indicate some additional explanatory factors to be taken into account, not exclusively in order to understand the reasons for harmonisation failure, but also as possible suggestions for future regulatory measures that might enable the EU and its Member States to remedy this state of affairs. First of all, it has to be noted that the adoption of the Temporary Protection Directive did not in and of itself involve any specific protection obligations on Member States. The minimum standards under the Directive will only become operational in the event of a mass influx of displaced persons, the existence of which shall be established by a separate Council decision that is to be adopted by a qualified majority on a proposal from the Commission.24 Due to this ‘escape clause’ mechanism it cannot have been perceived as immediately onerous for Member States to adopt the Directive despite its relatively high protection standards. Second, it should be admitted that the Asylum Procedures Directive is not the only one of the EU asylum instruments that is characterised by optional provisions and derogation possibilities. Thus, the Qualification Directive contains important optional mechanisms pertaining both to the definition of beneficiaries of refugee status and subsidiary protection25 and to the protection standards for such beneficiaries, in particular by way of permitting differential standards for subsidiary protection beneficiaries as compared to Convention refugees.26 Another example is the Reception Conditions

  Directive 2001/55, Article 2 in conjunction with Article 5.   See Directive 2004/83, Articles 5 (3), 14 (4) and (5), and 17 (3). 26   See Directive 2004/83, Articles 26 (3), 28 (2) and 29 (2). 24 25

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Directive under which asylum applicants’ freedom of movement is less than clear, given the provision that allows Member States to ‘confine an applicant to a particular place’ in accordance with national law when it ‘proves necessary, for example for legal reasons or reasons of public order’.27 As regards the socioeconomic rights of asylum applicants, this Directive is widely based on deference to Member States’ national legislation, not least concerning their access to employment.28 Third, Member States’ implementation of the various asylum Directives appears to demonstrate the lack of genuine minimum standards in the first phase of harmonisation under the Common European Asylum System. This has been made amply clear by the two comparative studies carried out by UNHCR on the implementation in selected Member States of the Qualification Directive and the Asylum Procedures Directive. The former study illustrates that the likelihood of obtaining identical outcomes of comparable asylum applications in different Member States is low, given the significant variations in recognition practices.29 Based on the study of asylum procedures in 12 Member States UNHCR observes that the Directive has not achieved the harmonisation of legal standards or practices across the EU, partially due to the wide scope of provisions permitting divergent practice, partially resulting from differing interpretations of many provisions and different approaches to their application.30 As far as the regulatory differences discussed above in section 3 are concerned, the failure of effective harmonisation of substantive as well as procedural aspects of asylum law and practice does not necessarily negate the tentative explanation here suggested by reference to the different legal characteristics of the Asylum Procedures Directive, the Qualification Directive and the Temporary Protection Directive. Rather to the contrary, the demonstrable absence of harmonised asylum decisions across Member States could be seen partially as an indirect result of the optionalist Asylum Procedures Directive. Thus, the existence of hugely divergent examination procedures may well in reality be an important factor causing different application of the definitional standards. It probably cannot even be excluded that some of the differing  Directive 2003/9 laying down minimum standards for the reception of asylum seekers (Reception Conditions Directive), Article 7. 28   Directive 2003/9, Article 11. 29  UNHCR, Asylum in the European Union. A Study of the Implementation of the Qualification Directive, Brussels: UNHCR 2007. 30  UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice. A UNHCR research project on the application of key provisions of the Asylum Procedures Directive in selected Member States, Brussels: UNHCR 2010. 27

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interpretations of the Qualification Directive may be indirectly linked to differences in examination procedures, in certain circumstances resulting in different approaches to issues of interpretation of definitional rules. Thereby, particular procedural features could be implicitly allowing for or even facilitating specific interpretive choices, exacerbating the consequences of vague or ambiguous substantive criteria for the recognition of persons in need of international protection. 5.  Critical Assessment of the Asylum Directives The problems and flaws inherent in the asylum Directives adopted during the first phase of the Common European Asylum System have been clearly acknowledged by the European Commission. In the 2007 Green Paper on the future Common European Asylum System, the Commission pointed out the large degree of flexibility in the Asylum Procedures Directive, such as the provisions on accelerated procedures, border procedures, and inadmissible applications. The Commission invited for reassessment of the content and added value of certain procedural devices such as the concepts of ‘safe countries of origin’, ‘safe third countries’ and ‘European safe third countries’.31 As regards the standards for reception conditions, the Commission stated quite bluntly that the wide margin of discretion left to Member States by several key provisions of the Reception Conditions Directive results in negating the desired harmonisation effect.32 On the definitional issues, the Commission suggested to clarify concepts pertaining to the eligibility criteria for refugee and subsidiary protection status in the Qualification Directive in order to minimise the margin for divergent interpretation and application in different Member States currently allowed by provisions of the Directive. It further suggested that a higher degree of harmonisation of protection standards would mean reducing the flexibility under the current legal framework concerning the rights to be granted as well as the possibility to limit or refuse access to certain rights.33 Similarly, in its 2008 Policy Plan on Asylum the Commission is concerned with the different results produced by diverse procedural arrangements and qualified safeguards. It is here argued that such features of the Asylum

  European Commission, Green Paper on the future Common European Asylum System, 6 June 2007, COM(2007) 301 final, p. 3–4. 32   Ibid., p. 4–5. 33   Ibid., p. 6. 31

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Procedures Directive can damage the very objective of ensuring access to protection under equivalent conditions across the EU.34 Further, it is stated that the significant variations across Member States in recognition of similar protection needs are to some extent rooted in the wording of certain provisions of the Qualification Directive.35 As regards reception conditions, certain problematic issues identified in the Directive are held to be largely due to the amount of discretion allowed to Member States in a number of key areas. The future amended Reception Conditions Directive should therefore contribute  to achieving a higher degree of harmonisation and improved standards of reception.36 The amendments proposed by the Commission of the three aforementioned Directives37 would seem to have the potential of considerably remedying many of these problems. Since any detailed discussion of these proposals falls outside the scope of this contribution, it will suffice to observe that experience from the negotiations of the first phase Directives suggests that there is a very real possibility that numerous and important changes may be introduced during the negotiation process with the result of weakening the amendments proposed by the Commission. 6.  The Single Asylum Procedure as a Future Solution? The EU is now preparing the second phase of the Common European Asylum System. This process was formally initiated by the adoption of the Hague Programme in 2004, according to which the aims of the second phase will be the establishment of a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection. It shall be based on the full and inclusive application of the Geneva Convention and other relevant treaties, and be built on a thorough and complete evaluation of the legal   European Commission, Policy Plan on Asylum. An integrated approach to protection across the EU, Communication, 17 June 2008, COM(2008) 360/3, p. 5. 35   Ibid., p. 5. 36   Ibid., p. 4. 37  Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers, 3 December 2008, COM(2008) 815 final. Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection, 21 October 2009, COM(2009) 554 final. Proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted, 21 October 2009, COM(2009) 551 final. 34

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instruments that have been adopted in the first phase.38 The notion of a common asylum procedure seems to be a rephrased version of what was termed the ‘single procedure’ by the Commission at the early stage of the implementation of the Tampere Programme.39 The Stockholm Programme adopted in 2009, setting out the general policy objectives for the future EU developments in this regulatory area, contains limited guidance to the legislative revision process.40 While recognising that there are still significant differences between national provisions and their application, and designating the establishment of a Common European Asylum System as a ‘key policy objective’ for the EU in order to achieve a higher degree of harmonisation, the Stockholm Programme is marked by the absence of specific policy directions for the future Directives on asylum. In brief, it limits itself to stating that both common rules and a better and more coherent application of them should prevent or reduce secondary movements within the EU, and increase mutual trust between Member States.41 The perspectives of the individual asylum seeker, refugee and subsidiary protection beneficiary are not really the focus of the Programme.42 The Dublin System is said to remain the ‘cornerstone in building the CEAS’ as it clearly allocates responsibility for the examination of asylum applications.43 More generally, the Council and the European Parliament are invited to intensify the efforts to establish a common asylum procedure and a uniform status in accordance with Art. 78 TFEU by 2012 at the latest. However, no specific directions are given as to which level, degree and quality of harmonisation should result from this. The long-term perspective being common asylum procedures across the EU, the single asylum procedure has the more limited ambition of introducing one single procedure within each Member State to examine the need for protection under the Refugee Convention, as well as subsidiary protection.   The Hague Programme: Strengthening freedom, security and justice in the European Union, Annex I to the Presidency Conclusions of the European Council 4–5 November 2004, para. 1.3. 39   Commission Communication: Towards a common asylum procedure and a uniform status, valid throughout the Union, 22 November 2000, COM (2000) 755 final, p. 8–9. 40   Stockholm Programme – An open and secure Europe serving and protecting the citizens, adopted by the Council of the European Union 10–11 December 2009 (final draft 2 December 2009, Council doc. 17024/09), published in OJ C 115/1, 4 May 2010. 41   Ibid., para. 6.2.1, p. 32. 42   Importantly, however, the Stockholm Programme restates the Tampere Conclusion objective of a ‘full and inclusive application’ of the Refugee Convention, and other relevant international treaties, ibid., p. 32. 43   Ibid., p. 32. 38

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It seems relevant here to point at some positive implications of such a future step of harmonisation, while not ignoring its negative potential. The notion of a ‘single procedure’ is favoured by a number of efficiency considerations: –  Shorter duration of asylum procedures as a result of the joint examination of both Refugee Convention and subsidiary protection grounds. – Less administrative resources spent by joining the two examination procedures. –  More effective enforcement or negative decisions, due to the inability for asylum applicants to postpone deportation by introducing a new procedure on subsidiary protection grounds. –  Protecting the integrity of the asylum system, and deterring abuse, as a result of the more efficient examination procedures and enforcement of negative decisions. –  Reduction of secondary movements due to future common EU standards for procedures on subsidiary protection. –  Facilitating protection, and thereby integration as well, as a result of the more rapid granting of protection to those in need thereof. Notwithstanding these efficiency arguments, the single procedure involves a certain risk of reducing procedural protection. As any human exercise, the examination of asylum cases evidently implies the risk of incorrect decisions, a risk that might increase in a hostile climate and at accelerated pace of decision-making. The existence of separate procedures for examination on Refugee Convention and subsidiary protection grounds provides some possibility to remedy mistakes in the former procedure by conducting the latter. In this sense, the introduction of a single asylum procedure eliminates a structural safeguard, thereby potentially reducing the level of correctness. In addition, it may involve the risk of undermining the primacy of the Refugee Convention, due to the incentive to opt for the less demanding alternative within the same examination procedure.44 The reduction of procedural safeguards thus inherent in separate examination procedures may, however, be compensated by the enhanced procedural standards for the examination of subsidiary protection applications that will, at least in some Member States, result from the extension of the scope of   Cf. European Commission, A More Efficient Common European Asylum System: The Single Procedure as the Next Step, Communication, 15 July 2004, COM(2004) 503 final, para. 27. See also UNHCR Observations of 30 August 2004 on the Communication, paras. 2–4, but differently Kai Hailbronner, Study on the single asylum procedure ‘one-stop shop’ against the background of the Common European Asylum System and the goal of a common asylum procedure, Luxembourg: Office for Official Publications of the European Communities 2003, p. 124.

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the Asylum Procedures Directive to cover these cases, which will inevitably be a consequence of introducing the single asylum procedure. Remarkably, such an extended scope of the harmonised EU standards will require an enhanced level of protection in terms of appeal rights, as compared to the Asylum Procedures Directive. While the 2005 Directive has failed to guarantee the right to remain in the country during appeal proceedings, as discussed above in section 2, common standards for a single asylum procedure are bound to imply that appeal will carry suspensive effect as of right. Unlike the Refugee Convention which has no express requirements regarding the specific examination and appeals procedures, the human rights based non-refoulement obligation that is underlying the Qualification Directive provisions on subsidiary protection necessitates compliance with the accessory right to effective remedies, as laid down in Article 13 of the European Convention on Human Rights.45 This imposes on Member States the obligation to secure a right to suspension of deportation as long as the operation of the appropriate legal remedy has not yet been finalised. Hence, the efficiency inherent in the single asylum procedure cannot be obtained without some investment in ‘fairness’ in terms of enhanced and mandatory procedural standards adopted at the EU level. Paradoxically, in order to uphold the principle of a single procedure such enhancement will in turn necessarily become applicable also to the examination of asylum applications under the Refugee Convention. A provision to this effect has indeed been included in the Commission proposal for a recast Asylum Procedures Directive.46 The abandonment of the requirement of unanimity within the area of asylum and immigration measures – initially by Art. 67 (5) TEC with a view to amending the adopted Directives, and more generally since the entry into force of the Lisbon Treaty on 1 December 200947 – may supposedly make it easier to disregard peculiarities of domestic legislation in the upcoming negotiations on the proposed amendments of the asylum Directives that are

 Cf. Čonka v. Belgium, ECtHR judgment of 5 February 2002, paras. 75–83, and Gebremedhin v. France, ECtHR judgment of 26 April 2007, paras. 58–67. See also the CoE Committee of Ministers’ Recommendation No. R (98) 13 on the Right of Rejected Asylum Seekers to an Effective Remedy. 46   Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection, 21 October 2009, COM(2009) 554 final, Article 41 (5) and (6), cf. Explanatory Memorandum para. 5. 47   Cf. Articles 78 and 79 TFEU, in conjunction with Article 294 TFEU. 45

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intended to constitute the second phase of the Common European Asylum System. Even while this may prove especially relevant to recast Asylum Procedures Directive, there are still many and strong national interests that may be reflected in Member States’ negotiation positions. Whether the formal change of legislative competences and procedures will make any significant difference in reality, resulting in more effective harmonisation and better compliance with the obligations under international human rights and refugee law through the adoption of the recast Directives in line with proposed by the Commission, is thus far mere speculation. Meanwhile, the paradoxical interaction between EU harmonisation of asylum standards and Member States’ already existing obligations under human rights law may appear to take the lead, and at least establish a rather firm legal framework within which the EU legislative institutions will be bound to adopt the recast Directive proposals. Until recently, legal proceedings attempting to prevent the Dublin transfer of asylum applicants to Member States providing insufficient procedural or substantive protection had only been successful in domestic courts. At the European level, the European Court of Human Rights so far only issued warnings, albeit on a principled basis, that certain limitations on Member States’ possibility to transfer asylum applicants under the Dublin Regulation follow from the European Convention on Human Rights, particularly Article 3.48 The extent and impact of these limitations were clarified by the Court’s early 2011 judgment holding violations of Article 3 and Article 13 by Greece due to its failed asylum system, as well as by Belgium having transferred the applicant asylum seeker to Greece under the Dublin Regulation in such circumstances.49 Given the considerable number of applicants attempting to avoid return to Greece due to the risks of inhuman or degrading treatment in, and indirect refoulement from, that Member State, the outcome of this leading case may ultimately change the asylum scenario in Europe. In any event, the Court’s insistence on compliance with human rights norms in the operation of the Common European Asylum System is putting serious pressure on the EU institutions not only to remedy the collapse of the Greek asylum system, but indeed also to secure more effective harmonisation of substantive and, not least, procedural asylum standards.

  Cf. the cases of T.I. v. United Kingdom, ECtHR decision of 7 March 2000, and K.R.S. v. United Kingdom, ECtHR decision of 2 December 2008. 49   M.S.S. v. Belgium and Greece, ECtHR Grand Chamber judgment of 21 January 2011. 48

The Externalisation of European Migration Control and the Reach of International Refugee Law T. Gammeltoft-Hansen* 1. Introduction Lampedusa – a small island in the Mediterranean located 200 km south of Sicily, 160 km north of Libya and only 113 km from the coast of Tunisia. Politically part of Italy but geologically part of Africa, Lampedusa has long been a key point of arrival for many of the boat migrants and refugees that each year attempt to cross the Mediterranean in order to reach Europe. In 2008, more than 31,000 persons managed the crossing, severely straining the capacity of the island’s immigration centres. At the time of writing however, the previously overcrowded detention centres have more or less been abandoned. Since May 2009 hardly any migrant boats have arrived at Lampedusa or anywhere else in Italy. Instead they have been stopped en route and directly returned to Libya. The change in policy is the result of the Treaty on Friendship, Partnership and Cooperation signed between Italy and Libya 30 August 2008, which entered into force 2 March 2009. As part of the agreement, Italy has pledged 5 billion US dollars over a period of 20 years for infrastructure projects in Libya.1 In return, Libya has agreed to take back intercepted migrants, allow joint migration control patrols inside Libyan territorial waters and Libyan authorities themselves help prevent irregular migrants from both entering Libya and moving on towards Europe. The Italian-Libyan Friendship Treaty is significant of a more general shift in the way that European migration control is organised. Border control no longer takes place only at the physical borders of the European Union. *  The present contribution draws in parts on research conducted in connection with my PhD dissertation, which will appear as T. Gammeltoft-Hansen, Access to Asylum: International refugee law and the globalisation of migration control, Cambridge: Cambridge University Press 2011. 1   Treaty on Friendship, Partnership and Cooperation between Italy and Libya, 30 August 2008, entry into force 2 March 2009. Officially the funds are to compensate Libya for Italy’s colonial past. All works will be assigned to Italian companies, but projects identified by a mixed commission.

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Rather,  migration is sought managed at every step of the route. European immigration officers are posted at all important transit hubs and EU’s border agency Frontex is coordinating interception operations across the Medi­ terranean and outside the coast of West Africa. Further, the actual performance of control is inceasingly delegated to the authorities of third countries. Both individual Member States and the EU are woing (or coercing) transit and origin countries to sign readmission agreements and help prevent unwanted migration to Europe. This extraterritorialisation and outsourcing of Europe’s migration control appears efficient in reducing – albeit hardly preventing – irregular immigration to the EU.2 Yet, it also raises important questions in regard to the asylumseekers and refugees that we know are among those rejected. Refugees are normally considered the exception to the state’s sovereign prerogative to decide who may remain within its territory. While international refugee law stops short of granting an actual right to asylum, the principle of nonrefoulement bids states not to return any refugee to a place where they risk persecution. It is this trump card that in the ordinary situation guarantees all asylum-seekers arriving in an EU Member State the right to an asylum procedure and, in case the application merits it, protection. No such possibility is however granted to those intercepted under the terms of the Italian-Libyan Friendship Treaty, nor elsewhere where EU states operate migration control on the territory or in the territorial waters of third states. The argument made to justify this difference in treatment is that the nonrefoulement principle and the 1951 Refugee Convention do not apply to such instances and that, in any case, any asylum claim should be addressed by the state in whose territory control takes place. In the case of Libya however, this alternative seems theoretic at best. Libya has yet to sign the 1951 Refugee Convention, it does not operate a national asylum system at present, and Libya has a track record of abuse, detention and forced return of migrants as well as asylum-seekers.3 According to Italian authorities, a total of 834 persons were

 In 2009 the EU’s border agency, Frontex, for the first time noted a significant decrease in irregular migration to the European Union. Frontex, Annual Risk Analysis 2010, Warsaw, March 2010. 3  See e.g. Amnesty International, Seeking Safety, Finding Fear: Refugee, asylum-seekers and migrants in Libya and Malta, Reg 01/004/2010, London, December 2010); Human Rights Watch, Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers, New York, September 2009. Libya is however signatory to the 1969 OAU Refugee Convention, the International Covenant on Civil and Political Rights and the Convention Against Torture. The non-refoulement principle is further formally incorporated as a matter of national law. article 21 of Law 20/1991 2

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intercepted and returned to Libya in the period 6 May to 6 November 2009.4 For the first half of 2010, arrivals of irregular boats at Italian shores have been decimated, leading to a significant drop in arrivals to the EU overall.5 While little knowledge exists of the fate of those returned, it is noticeable that approximately 75% of those arriving in Lampedusa during 2008 applied for asylum, and that out of those about 50% received some form of protection.6 For the purpose of ensuring accountability under international refugee law, the Italian-Libyan cooperation raises a number of legal challenges. First, does international refugee law apply when European states carry out migration control on the high seas or foreign territorial waters, and if so, under what conditions? Second, can states be held responsible for participation in or assistance to migration control and consequent rights abuses carried out by another sovereign state? The subsequent section sets out a more general framework for understanding how outsourcing of migration control relates to international refugee law. Following that, section three reviews the specific debate within refugee law and attempts to bring clarity to the application, ratione loci, of the nonrefoulement principle under the Refugee Convention. In section four, the issue is referred back to the broader framework of human rights and international law, and here the question of legal obligations in situations of extraterritorial migration control will be discussed by reference to the concept of extraterritorial jurisdiction as it has been applied in different situations by international human rights bodies. Lastly, the issue of indirect or subsidiary obligations when aiding or assisting another state in carrying out migration control is discussed in the context of the International Law Commission’s Articles on State Responsibility. 2.  The Art of Jurisdiction Shopping and International Refugee Law The policies of outsourcing migration control and concomitant uncertainties about the applicability of international refugee law play into a more general trend. Just like migration control is being extraterritorialised and outsourced, thus states that Libya is a ‘refuge for opressed people and those struggling for freedom and, therefore, refugees seeking protection may not be surrendered to any authority’. 4  UNHCR, Submission by the Office of the High Commissioner for Refugees in the Case of Hirsi and Others v. Italy, March 2010, par. 2.2.2. 5   EU Observer, ‘50% drop in EU irregular migrant border crossings after Italy-Libya pact’, 3 August 2010. 6   UNHCR, ‘UNHCR concerned over humanitarian situation in Lampedusa, Italy’, Press release, 23 January 2009.

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so are functions ranging from warfare to interrogation and detention of terrorists. Consequently, the traditional assumption that states remain free to exercise sovereign powers within, and only within, their own territory is increasingly challenged, which in turn prompts questions on how to organise sovereign responsibilities such as those relating to national and international human rights obligations in an increasingly globalised world. Probably the most fundamental principle of international law is that each state’s right to exercise power is limited to its sovereign territory. The territory is the state’s primary physical manifestation vis-à-vis other states.7 In a world composed of equal and mutual sovereign states, the claim to legitimately exercise power, or jurisdiction, is vested within the ‘sovereign nation cage’, horizontally encompassing the state’s land territory and territorial sea, and vertically extending from the ‘von Kármán line’ 50,550 miles above sea level and down to the sub-soil of the of national territory ending at the centre of the Earth.8 As was held by the Permanent Court of International Justice in the Las Palmas case: ‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.’9

In the human rights context, the territorial delimitations have played an equally important role in setting boundaries for state responsibility.10 Some instruments explicitly limit rights to beneficiaries present within the territory   I. Brownlie, Principles of Public International Law, Oxford: Oxford University Press 1998, p. 105.     8  O. Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary, Cambridge: Cambridge University Press 2005, p. 83; R. Palan, The Offshore World: Sovereign Markets, Virtual Places and Nomad Millionaires, Ithaca: Cornell University Press 2003, p. 97; R.T. Ford, ‘Law’s Territory (A History of Jurisdiction)’, (1999) 97 Michigan Law Review, p. 843–930; J.G. Ruggie, ‘Territoriality and Beyond: Problematizing Modernity in International Relations’, (1993) 47 International Organization, p. 139–174 at p. 151.     9  Case of the Island of Palmas, Permanent Court of International Justice., R.I.I.A. Vol. II, 4 April 1928, p. 838. 10  C. Tomuschat, Human Rights: Between Idealism and Realism, 2nd edn, Oxford: Oxford University Press 2008, p. 98.     7

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of the state in question. More generally, many human rights instruments are limited in their geographical application to the state’s ‘jurisdiction’. While the meaning of this term has been fiercely debated, it has been difficult to disassociate it from territory as the primary realm of state power. Thus, in the Bankovic case the European Court of Human Rights held that ‘jurisdiction’ in the meaning of the Convention: ‘must be considered to reflect the ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.’11

As will be discussed in the following sections jurisdiction and concomitant human rights responsibility may, in a range of situations, equally be established extraterritorially and indirectly.12 Yet, in the vast majority of cases the realm of a state’s human rights responsibility is naturally understood in territorial terms and any extension beyond this requires the additional step of establishing the state’s extraterritorial control or indirect responsibility in regard to the human rights violation in question. By delegating or shifting migration control out of the national territory, European states are engaging in what could be termed ‘jurisdiction shopping’.13 Jurisdiction shopping may involve a unilateral decision to move control activities to the high seas, or res communis, and thereby contesting the application of refugee and human rights compared to the territorial setting. Most clearly, however, jurisdiction shopping may be observed when states shift migration control into the territory or territorial waters of another state willing to make available its sovereign jurisdiction for the specific purpose, or where through bilateral agreements the authorities of a third state take over migration control functions. In these instances, the responsibility of the acting state is not only reduced, a competing duty bearer is introduced into the equation that may be argued to have the primary responsibility for assessing the protection needs of any asylum claims. By reference to the territorial state and its authorities as the guarantor of human rights obligations within its national

  Bankovic and Others v. Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxemburg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and the UK. European Court of Human Rights, Appl. No. 52207/99, 12 December 2001, par. 61. 12  See e.g. the contributions in M. Gibney and S. Skogly (eds), Extraterritorial Obligations in Human Rights Law, University of Pennsylvania Press 2010; and F. Coomans and M.T. Kamminga (eds), Extraterritorial Application of Human Rights Treaties, Antwerp: Intersentia 2004. 13   R. Palan, ‘Tax Havens and the Commercialization of State Sovereignty’, (2002) 56 International Organization, p. 151–176. 11

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borders, a presumption is created against similar obligations of the extraterritorially acting or outsourcing state. Examples where states have engaged in such bartering of sovereign authority for the purpose of migration management are several and growing. The Italian agreement with Libya was preceded by ship-rider agreements with Albania in the 1990s to bring Albanian immigration officers onboard Italian vessels in order to stop Albanian boat migrants in the Adriatic Sea. Similarly, as part of the EU coordinated HERA Operation preventing irregular migration to the Canary Islands, Spain has thus signed agreements with Senegal and Mauritania to intercept and directly return irregular migrants within their territorial waters. Outside Europe, the United States has used the Guantanamo base leased from Cuba as a diversion point for asylum-seekers intercepted on the high seas and, in 2001, Australia negotiated an agreement with the island states of Nauru and Papua New Guinea to establish offshore processing centres for intercepted asylum-seekers. Similar concepts for offshore asylum processing have subsequently been tabled, though so far never realised, in Europe as well.14 Common for such examples of jurisdiction shopping in the field of asylum and immigration is that the more resourceful and traditional asylum countries either negotiate access to carry out control within the territory of foreign states and/or negotiate cooperation with foreign authorities to take on control responsibilities. From the perspective of the cooperating third countries jurisdiction shopping involves a commercialisation of their sovereign territory and/or sovereign prerogatives. As in the Italian-Libyan case, substantial economic concessions may be involved in this process. NGOs estimate that over a six-year period the costs of ensuring third state cooperation; of relocating, housing and processing the approximately 1,700 asylum-seekers at offshore locations has cost Australia close to 1 billion AUD.15 In other cases, the carrots ensuring cooperation have included EU visa facilitation agreements and privileged labour quotas, and the sticks withholding development aid, trade agreements or political cooperation.16

  G. Noll, ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’, (2003) 5 European Journal of Migration and Law, p. 303. 15  K. Bem et al., A price too high: the cost of Australia’s approach to asylum-seekers, Carlton: A just Australia and Oxfam Australia, August 2007. 16  F. Pastore, ‘Aeneas’ Route – Euro-Mediterranean relations and international migration’, in S. Lavenex and E. M. Ucarer (eds), Migration and the Externalities of EU Integration, Lanham: Lexington Books 2002, p. 105–123; D. Lutterbeck, ‘Policing Migration in the Mediterranean’, (2006) 11 Mediterranean Politics, p. 59–82; T. Gammeltoft-Hansen, Outsourcing Migration Management: EU, power, and the external dimension of asylum and immigration policy, DIIS 14

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The structure of international refugee law could be argued to provide a certain incentive for policies of jurisdiction shopping. This concerns first the basic mechanism of responsibility assignment. The core of the refugee regime is the non-refoulement principle, which establishes the refugee as the exception to the sovereign right of states to exercise migration control and reject foreigners at the borders. Normally, this prohibition is enacted as soon as a refugee or asylum-seeker arrives at the frontiers of a given state and in principle obliges the state to undertake a status determination procedure. In this way, the division of refugee protection responsibilities tends to follow territorial borders – whatever country a refugee finds herself in, that state is responsible for not sending her back to persecution. Second, beyond the non-refoulement principle, the bulk of rights under the Refugee Convention of 1951 are not granted en bloc but rather according to a principle of territorial approximation. This means that more and more rights are acquired as the refugee obtains a higher level of attachment to the host state. This incremental approach reflects a concern of the drafters not to extend the full scope of rights in situations where refugees may arrive spontaneously in large numbers.17 Thus, in particular social and economic rights may only be claimed when a refugee is ‘lawfully present’ or ‘lawfully staying’ within the territory of the host state. Jurisdiction shopping is in this sense premised on a disjuncture between actual practices of extraterritorialisation and outsourcing on the one hand, and international and national legal frameworks on the other. It has proved surprisingly difficult for international law to capture current political practices related to increased international cooperation.18 Paradoxically, it is the traditional norms of national sovereignty and the territorial structure of international refugee law that provide the precondition for the proliferation of international cooperation in the area of migration control. As such, jurisdiction shopping may equally be viewed as a governmental technique of spatial and statist constraints that serves to reaffirm the importance of territorial boundaries for state responsibility.19 Working Paper no 2006/1, Copenhagen: Danish Institute for International Studies 2006; S. Lavenex, ‘Shifting up and out: The foreign policy of European immigration control’, (2006) 29 West European Politics, p. 329–350; J. Niessen and Y. Schibel, International migration and relations with third countries: European and US approaches, MPG Occasional Paper, Berlin: Migration Policy Group, May 2004. 17   James Hathaway, The Rights of Refugees under International Law, Cambridge: Cambridge University Press 2005, p. 157. 18   R. Schwarz and O. Jütersonke, ‘Divisible Sovereignty and the Reconstruction of Iraq’, (2005) 26 Third World Quarterly, p. 649–665 at p. 651. 19   Palan, ‘Offshore Worlds’, p. 3.

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These constraints notwithstanding, international refugee law cannot remain unaffected by current policy developments. As Theodor Meron concluded in response to the United States Supreme Court judgement in the Sale case, ‘[n]arrow territorial interpretation of human rights treaties is anathema to the basic idea of human rights’.20 A blind refusal of indirect state responsibility in cases of outsourcing and extraterritorial application of refugee and human rights instruments would only create a further incentive for states to move the less palatable issues of governance to foreign authorities and territories. As will be shown, international refugee law does in fact provide for an expanded reach to cover many of the interdiction schemes operated today. Such policies may not have been envisioned by the drafters of the 1951 Refugee Convention, but may be proven through an examination of both the Convention itself and reference to general human rights law. Similarly, while public international law has traditionally been slow in adapting to the realities of an increasingly globalised world, the International Law Commission’s Articles on State Responsibility equally opens up new avenues for holding states accountable when outsourcing responsibility for migration control to third states or private entities.21 3.  Do Refugee Rights Apply Extraterritorially? The Non-refoulement Principle Revisited Article 33(1) of the 1951 Convention Relating to the Status of Refugee stipulates: ‘No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion.’ In 1992, the U.S. Supreme Court held that the American interdiction programme toward Haitian refugees did not violate the non-refoulement principle set out in article 33.22 The Supreme Court argued that the Refugee Convention did not, and was never intended to, apply extraterritorially. The ruling garnered substantial criticism

 T. Meron, ‘Extraterritoriality of Human Rights Treaties’, (1995) 89 American Journal of International Law, p. 78–82 at p. 82. 21   See in particular articles 5, 8 and 16. For an analysis of state responsibility where migration control is delegated to private actors, see Gammeltoft-Hansen, ‘Access to Asylum’, ch. 5. 22   Sale, Acting Cmmr, Immigration and Naturalization Service v. Haitian Center Council, United States Supreme Court, 113 S.Ct. 2549, 509 US 155, 21 June 1993. 20

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from both scholars and other national courts.23 Yet, the Sale case in several ways picks up on a much older debate on the application ratione loci of article 33, and while the Supreme Court’s jurisprudence hardly stands undisputed, it does rely in part on arguments forwarded by reputable scholars. The present section cannot detail the vast amount of evidence of each position in this halfcentury old debate.24 Yet, some remarks as to the extraterritorial applicability of article 33 are in order since, following the structure of the Refugee Convention, if the non-refoulement principle does not apply extraterritorially, not much else under the Refugee Convention does. An important element in the Supreme Court’s ruling concerned the preparatory work of article 33. The Supreme Court put emphasis on a remark made by the Swiss delegate to the Conference of Plenipotentiaries that the word non-refoulement could not be understood to apply to refugees arriving at the border, but only to those already present within the territory.25 The Swiss interpretation was supported by a number of countries and the Dutch delegate argued that clarification of this issue was of ‘great importance’ and asked that it be officially noted that the conference was in agreement with this interpretation before signing.26 On the basis of these remarks, an early commentator to the convention concluded that ‘article 33 concerns refugees who have gained entry into the territory of a Contracting State, legally or illegally, but not to refugees who ask entrance into this territory. … In other words, if a refugee has succeeded in eluding the frontier guards, he is safe; if he has not, it is his hard luck’.27 This interpretation subsequently drew support from Atle Grahl-Madsen, who argued that ‘even though ‘refoulement’ may mean “non-admittance at the frontier” … it is quite clear that the prohibition against “refoulement” in Article 33 of the 1951 Convention does not cover this aspect of the term “refoulement” ’.28

  Harold Hongju Koh, ‘The ‘Haiti Paradigm’ in United States Human Rights Policy’, (1994) 103 (8) The Yale Law Journal, p. 2391–2435; James Hathaway, The Rights of Refugees under International Law, Cambridge: Cambridge University Press 2005, p. 339. 24   For an attempt towards a more systematic treatment of this debate, see Gammeltoft-Hansen, ‘Access to Asylum’, chapter 3. 25   UN Doc. A/CONF.2/SR.16[0]. 26   UN Doc. A/CONF.2/SR.35[0], p. 21 27   Nehemiah Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation - A Commentary, New York: Institute for Jewish Affairs 1953, p. 163. 28  Atle Grahl-Madsen, Commentary on the Refugee Convention 1951 Articles 2–11, 13–37, Geneva: Division of International Protection of the United High Commissioner for Refugees 1963 (republished 1997), p. 135. 23

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While this conclusion may be reached when relying exclusively on this part of the travaux, it should be noted that this was not the only interpretation forwarded during the negotiations. The Ad Hoc Committee responsible for drafting the text emphasized the interpretation that refoulement did, as it is customary under French and Belgian law, equally cover instances where a refugee presented himself at the border but had not yet entered the territory.29 A similar argument may be drawn from the Ad Hoc Committee’s considerations as to the wider implications of the non-refoulement principle. It was noted that non-refoulement did not, in all instances, entail an obligation of admittance, since a state could always redirect a refugee to another state, as long as he or she did not risk persecution there.30 This would clearly presuppose an obligation by the state toward refugees not yet in its territory, whether standing at the border or encountered elsewhere. Further, relying on the preparatory work as a primary source does not sit well with ordinary methods of interpretation. Following a more doctrinal approach, the Supreme Court in the Sale case also based its conclusion on the wording of article 33(2). Noting that this article exempts states from the nonrefoulement obligation for the refugee who constitutes a ‘danger to the security of a country in which he is’ (emphasis added), the Supreme Court went on to argue that since a refugee on the high seas is in no country at all, if the nonrefoulement obligation were to apply there, it would create an anomaly where ‘dangerous aliens on the high seas would be entitled to the benefits of 33(1) while those residing in the country that sought to expel them would not’.31 Based on this reasoning, the Supreme Court found it ‘more reasonable to assume that the coverage of 33(2) was limited to those already in the country because it was understood that 33(1) obligated the signatory state only with respect to aliens within its own territory’.32 Even though article 33(2) clearly represents a concession to national sovereignty in maintaining the right of states to expel refugees in their territory who are causing security concerns,33 the argument that this exception entails a territorial limitation of the non-refoulement obligation as such seems flawed in its underlying logic. Whereas article 33(2) is an exception to article 33(1), and thus reflects the ratione loci, materiae, and personae of article 33(1) and in  itself sets out a subgroup of refugees from whom the protection against   UN Doc. E/AC.32/SR.21, par 13–26.   UN Doc. E/AC.32/SR.20[0], par 14. 31   Sale, Acting Cmmr, Immigration and Naturalization Service v. Haitian Center Council, United States Supreme Court, 113 S.Ct. 2549, 509 US 155, 21 June 1993, 180. 32   Ibid. 33  Stephen Legomsky, ‘The USA and the Caribbean Interdiction Programme’, (2006) 18 International Journal of Refugee Law, p. 677–696. 29 30

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refoulement is waived, it does not conversely follow that article 33(1) is equally limited by the scope of article 33(2).34 In addition, the wording of article 33(1) has given rise to several arguments in favor of a more expansive reading. First, as mentioned above, the term refoulement does include rejection at the border within French law and the deliberate insertion in the English text next to ‘return’ may be seen as a strong indicator that the broader ambit of the French term should prevail.35 Second, there is the argument that the question of from where a refugee is returned is irrelevant on a closer reading of the terms employed. Article 33 sets out two proscriptions, one regarding expulsion and one regarding return. As indicated by the use of ‘or’ between ‘expel’ and ‘return’ in the article, these two prohibitions should be read disjunctively. The first, expulsion, clearly refers solely to actions removing a refugee from a contracting state. The second prohibition, however, bans actions returning refugees to any territories where his life or freedom would be threatened.36 Looking for the object and purpose of the non-refoulement principle, it seems equally hard to support a strictly territorial reading. The preamble of the convention notes the endeavor to ‘assure refugees the widest possible exercise of these fundamental rights and freedoms’ (par. 2), which would support a wider ratione loci, at least where differing interpretations are possible from the wording alone. Similarly, several scholars have argued that the ‘essential purpose’ of the non-refoulement principle is enshrined in the text itself, namely to prohibit ‘return in any manner whatsoever of refugees to countries where they may face persecution’.37 This clearly emphasizes a consequentialist reading, in which it is to where, not from where, that matters. At this stage, any continued dubiety as to the geographical scope of article 33 may be dismissed by examining subsidiary sources, such as soft law, state practice, and codification of the non-refoulement principle in other areas of international law. The UN High Commissioner for Refugees Executive Committee has made it clear that the protection offered by article 33 was to encompass situations at the border.38 The Council of Europe has similarly

  See in particular the dissent to the Sale verdict by Justice Blackmun.   Council of Europe Parliamentary Assembly Doc. 1986, Report on the granting of the right of asylum to European refugees (29 September 1965), p. 6. 36   UNHCR, ‘Brief Amicus Curiae: The Haitian Interdiction Case 1993’, (1994) 6 (1) International Journal of Refugee Law, p. 85–102 at p. 87. 37   Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd ed., Oxford: Oxford University Press 2007, p. 248. 38  Conclusion no. 6 (XXVIII) 1977, par. c; Conclusion no. 22 (XXXII) 1981, par. II.A.2; Conclusion no. 81 (XLVIII) 1997, par. h; Conclusion no. 85 (XLIX) 1998, par. q; and Conclusion no. 99 (LV) 2004, par. l. 34 35

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argued that it seems illogical a priori that a person who has succeeded in crossing the frontier illegally should enjoy greater protection than someone who presents himself legally and that ‘no one shall be subjected to refusal at the frontier’.39 Beyond the frontier, the Executive Committee has further noted that the non-refoulement principle must be respected whenever a state engages in interception measures and that states are ‘to respect scrupulously the fundamental principle of non-refoulement, and to make every effort to ensure the safety and well-being of refugees within their jurisdiction.’40 Lastly, the InterAmerican Commission of Human Rights specifically rejected the reasoning of the U.S. Supreme Court in Sale, and argued that article 33 does indeed apply to persons interdicted on the high seas.41 As for state practice, up until the Sale case, scholars have found it difficult to record a single historical precedent for such extraterritorial deterrence mechanisms without some assumption of responsibility—even if only in principle.42 The UN High Commissioner for Refugees equally noted that, to its knowledge, no other state has resorted to the implementation of a formal policy of intercepting refugees on the high seas and repatriating them against their will.43 Of course, since the Sale case one could point to at least some additional examples of interdiction policies. Yet, while the Australian operation of the so-called Pacific Solution has been criticized for violating a number of human rights principles, it notably does not challenge the application of the nonrefoulement principle to interdictions carried out in international waters, but rather, claims that article 33 is respected by relocating those interdicted to a third country where asylum procedures are provided.44 Similarly, the European Union’s interdiction schemes carried out under Frontex’s auspices do acknowledge the principle of non-refoulement for all persons interdicted in international waters. Lastly, it is noteworthy that up until the Kennebunkport Order of 1992,45 the United States, not only in practice but also as a matter of opinio juris, considered the non-refoulement principle to apply to actions undertaken on the high seas.46   Council of Europe Parliamentary Assembly Doc. 1986, Report on the granting of the right of asylum to European refugees (29 September 1965), p. 7. 40   Conclusion no. 97 (LIV) 2003, par. a(iv); Conclusion no. 74 (XLV) 1994, par. g, respectively. 41   Haitian Center for Human Rights v. United States (‘US Interdiction of Haitians on the High Seas’), Inter-American Commission of Human Rights, Case 10.675, 13 March 1997. 42  Hathaway, Rights of Refugees, p. 337. 43  UNHCR, Amicus Curiae to Sale, p. 92. 44   M. Pugh, ‘Drowning not Waving: Boat People and Humanitarianism at Sea’, (2004) 17 Journal of Refugee Studies, p. 50–68. 45   Executive Order no. 12807, Interdiction of Illegal Aliens, 57 Federal Register 20627, 14 May 1992. 46  Legomsky, Caribbean Interdiction Programme, p. 679. 39

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Thus, despite of the surge in attempts to enact offshore migration control, we may conclude that while some uncertainty as to the application of article 33 to situations at or beyond the border may have pertained at the time of drafting, subsequent state practice and soft law has clearly confirmed a wider ratione loci. This would bring the geographical scope of article 33 of the Refugee Convention in line with the formulations of the non-refoulement principle as it has emerged in other human rights instruments. These have been expressed in the interpretation of article 3(1) of the UN Convention Against Torture, article 7 of the International Covenant for Civil and Political Rights, and article 3 of the European Convention of Human Rights, all of which emphasize state jurisdiction as geographical scope. While differences in application ratione loci between human rights instruments may remain, a parsimonious interpretation of the Refugee Convention would thus subject the non-refoulement principle to the general proposition that as a matter of human rights states remain responsible for conduct in relation to persons ‘subject to or within their jurisdiction’. In conclusion, an interpretation of article 33 as applying only within the territory or at the borders is difficult to uphold. While those specifically looking for more restrictive interpretations may find some support in different sources, a balanced and holistic interpretation irrefutably emphasizes ‘jurisdiction’ as the ratione loci of a state’s obligations. The question, of course, remains how much is gained by this achievement. Not only do other rights under the Refugee Convention carry a narrower application, but the exact interpretation of what constitutes ‘jurisdiction’ when states act extraterritorially also becomes essential if the protection offered by the non-refoulement principle is to have any practical significance in these situations. 4.  Extraterritorial Migration Control, Human Rights Obligations and

the Concept of Jurisdiction

In response to the Italian-Libyan interdiction scheme, a case against Italy has been launched with the European Court of Human Rights.47 Hirsi and Others v. Italy concerns 24 asylum-seekers from Eritrea and Somalia interdicted as part of a larger group of about 200 people on the high seas, 35 miles south of Lampedusa on 6 May 2009. The applicants were subsequently transferred to an Italian Guardia di Finanza vessel and taken directly back to Tripoli where they were handed over to Libyan authorities. One of the plaintiffs has

  Hirsi and Others v. Italy, European Court of Human Rights, Appl. No. 27765/09. Case submitted 26 May 2009.

47

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subsequently died during a renewed attempt to reach Italy in November 2009, others have reportedly been detained in Libya. The main complaint is that by returning the applicants to Libya, Italy violated article 3 by exposing them to a risk of torture or inhuman and degrading treatment both as a result of their conditions in Libya and for the lack of any safeguards to prevent onwards refoulement to their country of origin. In addition, the push-back is argued to violate article 4 of Protocol 4 concerning collective expulsion as well as the right to an effective legal remedy under article  13. On all three accounts however, a necessary premise for claiming these rights under the Convention is that the applicants were indeed within Italy’s jurisdiction when intercepted and returned to Tripoli. A number of refugee lawyers appear to assume that any exercise of migration control, whether inside, at, or beyond the border, necessarily entails an exercise of jurisdiction. Yet, this view finds little support under general international law. For the purpose of engaging human rights responsibilities, the concept of jurisdiction is bound by a premise of control over the human rights victims in question. Within the territory, this control flows from the formal entitlement to exercise sovereign authority. Beyond the territory however, the test for establishing such control, at least when states act in regard to foreigners, is substantially more demanding. For the application of both the non-refoulement principle under the 1951 Refugee Convention and general protections rights by the European Convention and other human rights treaties, the key question thus remains when, if ever, extraterritorial migration control is tantamount to extraterritorial jurisdiction. While a growing body of human rights case law confirms that a state’s jurisdiction may under certain circumstances extend extraterritorially, the starting point has nonetheless remained an essentially territorial understanding. In the Bankovic case involving the NATO bombing of a Serbian radio station killing sixteen employees, the Grand Chamber of the European Court of Human Rights had the opportunity to discuss the notion of jurisdiction at length and concluded that: ‘Article 1 of the Convention must be considered to reflect the ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.’48

Consequently, the Court unanimously declared Bankovic inadmissible as the deceased were not deemed to be within the jurisdiction of the NATO states   Bankovic and Others v. Belgium and Others, European Court of Human Rights, Appl. No. 52207/99, 12 December 2001, par. 61.

48

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during the attack. While Bankovic has been substantially criticised, it has nonetheless remained an important reference point for subequent rulings.49 And while Bankovic certainly sets a high threshold it also concedes that jurisdiction does in some instances extend extraterritorially. Extraterritorial jurisdiction has thus already been established in a number of cases concerning interdiction on the high seas. In Medvedyev the Grand Chamber of the European Court of Human Rights considered the lawfulness of French navy officers when intercepting a vessel in international waters off Cape Verde and subsequently towing it and its crew to France on charges of drug smuggling.50 While acknowledging ‘the special nature of the maritime environment’, the Court nonetheless argued that it ‘cannot justify an area outside the law where ships’ crews are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction’ (par. 81). Consequently, France was found to have ‘exercised full and exclusive control over the Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until   See e.g. L.G. Loucaides, ‘Determining the Extra-territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic Case’, (2006) 4 European Human Rights Law Review, p. 391–407; V. Mantouvalou, ‘Extending Judicial Control in International Law: Human Rights  Treaties and Extraterritoriality’, (2005) 9 International Journal of Human Rights, p. 147–163 at p. 157; E. Roxstrom, M. Gibney and T. Einarsen, ‘The NATO Bombing Case (Bankovic et al. v. Belgium et al.) and the Limits of Western Human Rights Protection’, (2005) 23 Boston University International Law Journal, p. 56–136. Bankovic has further been read by some as setting out a geographical restriction to extraterritorial application; namely that the Convention is essentially regional and situations of extraterritoriality thus only applicable within the legal space or ‘espace juridique’ of the convention, i.e. only in the territory of another contracting state (par. 80). Such an interpretation, however, is both out of line with previous and subsequent case law of the Court. See e.g. X and Y v. Switzerland, European Commission of Human Rights, Appl. No. 7289/75 and 7349/76, 14 July 1977 (Liechtenstein was not at the time a party to the Convention) and Issa and Others v. Turkey, European Court of Human Rights. Appl. No. 31821/96. 16 November 2004. For a rebuttal of the restrictive espace juridique interpretation see e.g. J. Cerone, Out of Bounds? Considering the reach of international human rights law, Working Paper No. 5, New York: Center for Human Rights and Global Justice 2006, p. 19–20; M. Gondek, ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization’, (2005) Netherlands International Law Review, p. 348–387 at p. 375–77; and R. Wilde, ‘Opinion: The ‘Legal Space’ or ‘Espace Juridique’ of the European Convention on Human Rights: Is It Relevant to Extraterritorial State Action?’, (2005) 2 European Human Rights Law Review, p. 115–124. 50   Medvedyev and Others v. France, European Court of Human Rights, Appl. No. 3394/03, 10 July 2008. France appealed to the Grand Chamber who upheld the jurisidictional ruling (par. 63–66) in its ruling of 29 March 2010. 49

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they were tried in France, the applicants were effectively wthin France’s jurisdiction’ (par. 67). While Medvedyev creates a strong precedent for establishing jurisdiction in Hirsi and similar situations, jurisdiction has even been established where interdicted persons are not brought onboard European ships or vessels physically boarded. In Xhavara,51 an Italian navy vessel seeking to stop and inspect suspected irregular migrants on board the Albanian ship ‘Kater I Rades’ ended up colliding with and sinking the ship. The incident became known as the ‘Otranto tragedy’ and 83 are assumed to have died as a result of the collision, though not all the bodies could be recovered. Italy operated under a bilateral agreement with Albania allowing them to board Albanian vessels wherever encountered, but the collision occurred in international waters, 35 miles off the Italian coast in the Strait of Otranto. While the case was declared inadmissible ratione temporae, the Court did consider Italy to have exercised jurisdiction and in principle held Italy responsible for instigating a full and independent investigation into the deaths under article 2 – a requirement that Italy was considered to have fulfilled already by having initiated proceedings against the captain of the Italian vessel.52 For situations involving interception of asylum-seekers on the territory of a third state or in foreign territorial waters rather than on the high seas, the jurisdictional assessment is however complicated by the presence of a territorial sovereign. Nonetheless, it is acknowledged that ‘a State may also be held accountable for violation of…rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State’.53 This was also affirmed in Bankovic, though referring more specifically to ‘the activities of diplomatic and consular agents acting abroad and on board craft and vessels registered in, or flying the flag of, that State’.54

  Xhavara and fifteen v. Italy and Albania, European Court of Human Rights, Appl. No. 39473/ 98, 11 January 2001 (admissibility). 52   Similarly, the Inter-American Commission held that the shooting down of two air planes in international airspace was sufficient to establish jurisdiction on behalf of Cuba. Armando Alejandre Jr. and Others v. Cuba (‘Brothers to the Rescue’), Inter-American Commission for Human Rights, Case 11.589, 29 September 1999. 53   Issa and Others v. Turkey, European Court of Human Rights, Appl. No. 31821/96, 16 November 2004, par. 71. 54   Bankovic and Others v. Belgium and Others, European Court of Human Rights, Appl. No. 52207/99, 12 December 2001, par. 73. See also Medvedyev and Others v. France, European Court of Human Rights, Appl. No. 3394/03, 10 July 2008. 51

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So far however, the European Court of Human Rights appears to have taken the approach that establishing extraterritorial jurisdiction requires that states exercise a degree of control over either a geographical area or the individual in question that effectively excludes any competing authority by the territorial state. For the purpose of extraterritorial migration control this requirement is likely to be met where asylum-seekers are taken into physical custody and/or detained.55 In the Marine I case the Committee Against Torture explicitly affirmed that extraterritorial detention of migrants amounts to jurisdiction.56 On 31 January 2007, the cargo vessel, Marine I, carrying 369 migrants of Asian and African origin had capsized in international waters off the West African coast. Following 8 days of diplomatic negotiations between Mauritania, Senegal and Spain, the Spanish Civil Guard boarded the vessel to provide immediate health care but proceeded to tow the Marine I to the Mauritanian port of Nouadhibou. Under an agreement with Mauritania, the migrants were disembarked and placed at a former fishing plant under Spanish authority. In the following days the majority of the migrants were repatriated to Guinea, India and Pakistan. 23 persons however resisted repatriation and remained at the fishing plant guarded by Spanish security forces for five months. Ten of the 23 were eventually granted access to Spain and Portugal on humanitarian grounds and the final thirteen returned to Pakistan. In terms of the jurisdictional assessment, the Committee Against Torture concluded that: ‘jurisdiction must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention…In the present case, the Committee observes that the State party maintained control over all persons on board the Marine I from the time the vessel was rescued and throughout the identification and repatriation process that took place at Nouadhibou. In particular, the State party exercised, by virtue of a diplomatic agreement concluded with Mauritania, constant de facto control over the alleged victims during their detention in Nouadhibou. Consequently, the Committee considers that the alleged victims are subject to Spanish jurisdiction insofar as the complaint that forms the subject of the present communication is concerned.’57

 See e.g. Ramirez Sánchez v. France, European Commission of Human Rights, Appl. No. 28780/95, 24 June 1996; Öcalan v. Turkey, European Court of Human Rights, Appl. no. 46221/99, 12 March 2003; López Burgos v. Uruguay, Human Rights Committee, UN Doc. A/36/40, 6 June 1979; Lilian Celiberti de Casariego v. Uruguay, Human Rights Committee, UN Doc. CCPR/C/OP/1, 29 July 1981. 56   J.H.A v. Spain, Committee Against Torture, CAT/C/41/D/323/2007, 21 November 2007. 57   Par. 8(2). The case was however declared inadmissible as the complainant was not expressly authorised to act on behalf of the victims. 55

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It is however more questionable whether this jurisdictional basis extends to activities not actually aboard intercepting vessels. Taking into account the reasoning in Bankovic, Italian vessels not boarding but blocking and/or escorting vessels back in foreign territorial waters may thus be insufficient to establish extraterritorial jurisdiction over the individuals concerned. In Al-Skeini, the boundaries of effective control in the personal sense was examined by the House of Lords, including an extensive review of relevant international case law.58 The case concerned six deaths of Iraqi civilians. Five of them had been shot by armed forces of the United Kingdom or caught in crossfire during British patrols. The last claimant, Mr. Mousa, had been detained at a British military base in Basra at which he was severely beaten and subsequently died from his wounds. Yet, according to the House of Lords only this last case fell within the jurisdiction of the United Kingdom. As regards actions taking place in the territory of a foreign state it thus appears that a distinction is made between cases where states exercise complete and physical control over an individual, such as in the case of arrest or custody, and situations that only result in violations of human rights on foreign soil or territorial waters, even when these instances are so important that they infringe the right to life. Failing this test, jurisdiction conflicts are resolved by returning to the basic territorial principles for dividing responsibilities. Under such a reading it becomes substantially harder to establish refugee and human rights responsibility when a state operates migration control within the territorial jurisdiction of a foreign state. Immigration officers merely rejecting onwards passage and ships intercepting but not physically boarding migrant vessels in foreign. None of this resonates well with the telos of international refugee law. Recalling the words of Louis Henkin during the drafting of article 33 of the Refugee Convention, it should not matter whether a state encounters the refugee before or after he crosses the frontier: ‘the problem remains the same … he must not be turned back to a country where his life and freedom could be threatened’.59 It should be remembered however that the human rights jurisprudence on extraterritorial jurisdiction is still somewhat ‘in its infancy’.60 Besides the Hirsi case, which at time of writing is still pending, Al-Skeini has been appealed to the European Court of Human Rights and referred for a

  Al-Skeini and others v. Secretary of State for Defence, House of Lords, UKHL 26, 13 June 2006.   UN Doc. E/AC.32/SR.20[0], par. 54. 60   R. O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on Life after Bankovic’, in: F. Coomans and M.T. Kamminga (eds), Extraterritorial Application of Human Rights Treaties, Antwerp: Intersentia 2004, p. 139. 58 59

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ruling by the Grand Chamber, which will provide the Court with a crucial opportunity to review the Bankovic doctrine.61 5.  Outsourcing Migration Control and Secondary State Responsibility While the above analysis brings some hope for establishing responsibility where European authorities themselves carry out migration control on the high seas or territorial waters of another state, it is less clear whether it will extend to more sophisticated policies where European states do not directly engage in migration control. Article 19 of the Italian-Libyan Friendship Treaty provides for two kind of cooperation in regard to immigration that involve active cooperation of Libyan authorities rather than simply access to its territorial waters. The first concerns the implementation of previous agreements between the parties to undertake joint patrols of Libyan territorial waters. For this purpose Italy will deliver an initial 6 patrols boats. The boats will fly the Libyan flag and patrol under Libyan command but be manned by a mixed crew.62 The second concerns an obligation for Libya to patrol its land borders to prevent irregular migrants setting off towards Europe. This part of the agreement does not involve any deployment of Italian officers, yet technical equipment – including an advanced satellite detection system – is to be provided and funded jointly by Italy and the European Union.63 More generally, international cooperation involving joint commitments to undertake migration control seems to be fast growing. In the European context, general obligations to ‘combat illegal immigration’ are now incorporated in both the EU’s development framework and its Neighborhood Policy.64   Al-Skeini and others v. the United Kingdom, Appl. No. 55721/07, Case submitted 11 December 2007. See also Al-Jedda v. United Kingdom, Appl. No. 27021/08, Case submitted 3 June 2008. 62   Whether the presence of Italian officials onboard such boats may nonetheless amount to Italian jurisdiction under some circumstances is debatable. As a starting point, jurisdiction for human rights purposes cannot be deferred merely by reference to pre-existing agreements among two states. See e.g. Xhavara and fifteen v. Italy and Albania, European Court of Human Rights, Appl. No. 39473/98, 11 January 2001; Al-Saadoon and Mufdhi v. United Kingdom, European Court of Human Rights, Appl. No. 61498/08, 2 March 2010. See further Gammeltoft-Hansen, ‘Access to Asylum’, p. 136–139. 63   The financial commitment relating to this part of the agreement has yet to be determined. Natalino Ronzitti, The Treaty on Frienship, Partnership and Cooperation bewteen Italy and Libya: New prospects for cooperation in the Mediterranean?, paper presented at the Mediterranean Strategy Group Conference ‘Is regional cooperation in the Mahrgreb possible’, Genoa. 11–12 May 2009, p. 6. 64  Andrew Geddes, Migration as Foreign Policy? The External Dimension of EU Action on Migration and Asylum, SIEPS Report 2009/2, Stockholm: Swedish Institute for European 61

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For the purpose of determining extraterritorial legal obligations, this raises a number of additional challenges. Establishing the international responsibility of states aiding or assisting another state in setting up migration control that may compromise international refugee law introduces a question of attribution in addition to that of jurisdiction. While the involvement or complete outsourcing of migration control to the authorities of another state may weaken claims for extraterritorial jurisdiction, it does not mean, however, that responsibility is simply shifted. In such cases, recourse may be had to the International Law Commission’s Articles on State Responsibility, which set out a number of general secondary norms regarding attribution and consequences of internationally wrongful acts. While not binding as a matter of treaty law, the principles may be considered customary international law.65 That these principles are further applicable to human rights and refugee law has been affirmed both in the commentary to the Articles and through the reflection and application of the principles contained by the human rights treaty bodies.66 Following the ILC Articles a state may be held internationally responsible for human rights violations carried out by another state if it ‘aids or assists’ these acts (article 16), ‘directs and controls’ them (article 17), or ‘coerces’ the state to commit them (article 18). Articles 17 and 18 only cover instances where a state compels or directly coerces another state to commit acts contrary to international law. Mere advise or incitement is not enough. It must

Policy Studies 2009; Thomas Gammeltoft-Hansen, Outsourcing Migration Management: EU, power, and the external dimension of asylum and immigration policy, DIIS Working Paper 2006/1, Copenhagen: Danish Institute for International Studies 2006; Elspeth Guild, What is a Neighbour? Examining the EU Neighbourhood Policy from the Perspective of Movement of Persons, paper presented at Western NIS Forum for Refugee-Assisting NGOs, Yalta, 1–3 June 2005. 65   Robert McCorquodale and Penelope Simons, ‘Responsibility Beyond Borders’, (2007) 70 (4) Modern Law Review, p. 598–625 at p. 601; Lauterpacht and Bethlehem, ‘The scope and content of the principle of non-refoulement’, p. 108; J. Crawford and S. Olleson, ‘The Continuing Debate on a UN Convention on State Responsibility’, (2005) 54 International and Comparative Law Quarterly, p. 959–968. 66   J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge: Cambridge University Press 2002, p. 25. As noted in Bankovic, ‘the Court recalls that the principles underlying the Convention cannot be interpreted and applied in a vacuum. The Court must also take into account any relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine State responsibility in conformity with the governing principles of international law’. Bankovic and Others v. Belgium, and Others, European Court of Human Rights, Appl. No. 52207/99, 12 December 2001, par. 57.

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be  shown that the outsourcing state exercises a more substantial degree of military or economic pressure upon the acting state and that a detailed degree of control or direction over the act itself is retained.67 While European states and the EU at large may conceivably exercise such a degree of pressure on third countries dependent on e.g. economic assistance, most cases of international cooperation in regard to migration control are nonetheless likely below this threshold, if not for the degree of pressure exercised, then for the lack of specific direction or control over the act in question. States may however also incur responsibility for mere ‘complicity’ in human rights violations. Article 16 stipulates that: A State which aids or assists another State in the commission of an inter­ nationally  wrongful act by the latter is internationally responsible for doing so if: a. that State does so with knowledge of the circumstances of the internationally wrongful act; and b. the act would be internationally wrongful if committed by that State.

While the principle of indirect or subsidiary responsibility of states aiding or assisting an internationally wrongful act has so far primarily been recognised in cases concerning armed conflict, the commentary explicitly notes that it is also applicable in cases concerning ‘material aid to a State that uses the aid to commit human rights violations’.68 The provision of boats, technical border control equipment, secondment of border officials and financial assistance may thus all engage article 16 and thus brings the cooperation between Libya and Italy/the EU within its scope.

Contrary to this, some scholars have argued that human rights constitute lex specialis or a legal regime sui generis and as such are specifically exempted from the scope of the ILC Articles under article 55. According to Evans and Clapham the Articles on State Responsibility are best seen as ‘operating in an altogether different realm’ than human rights and as such should not be considered appropriate in the interpretation of human rights instruments, which do not operate as inter-state treaties. M. D. Evans, ‘State Responsibility and the European Convention on Human Rights: Role and Realm’, in: M. Fitzmaurice and D. Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions, Oxford: Hart Publishing 2004, p. 139–60 at p. 160; Clapham, ‘Human Rights in the Private Sphere’, p. 188. To the present author however, it does not appear from refugee and human rights instruments that they constitute lex specialis or a legal regime sui generis in this regard. For an overview of this discussion and a critique of Clapham’s and Evans’ position see Lawson, ‘Out of Control’ and the references herein. 67   Crawford, ‘Articles on State Responsibility’, p. 152–54. 68   Ibid., p. 150.

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For responsibility to arise, certain requirements must however be fulfilled. The first requirement is that the assisting state must be aware of its role in contributing to the internationally wrongful act. Under ordinary circumstances states do not incur liability for how aid or assistance given in good faith is subsequently used by another sovereign. The requirement that the assisting state must have ‘knowledge of the circumstances’ should thus be read to mean that the assisting state has specific information indicating that the aid may be used for purposes contrary to international law. The second requirement is that aid or assistance must be directly linked to the wrongful conduct. The assistance must be given ‘with a view to facilitating the internationally wrongful act, and must atually do so’.69 It is not a requirement that the assistance is essential to performing the internationally wrongful act, but it must contribute significantly thereto.70 In practice, the requirements of knowledge and intent will often set a high threshold for establishing responsibility in cases of outsourcing of migration control. Most international agreements of this nature are cloaked in secrecy, and compensation for taking on migration control functions are often linked to more general frameworks of development aid or trade agreements. General clauses and pressure ‘to combat illegal migration’ in EU agreements with third countries could thus be argued to fall below the requirements, since the financial or other assistance involved in return is not directly linked to the performance of migration control by the receiving states. Similarly, while the signing of EU or bilateral readmission agreements creates a foreseeable risk of ‘mimicry’ in third countries stepping up their own migration control to avoid becoming the cul de sac,71 this is unlikely to give rise to international responsibility under article 16 unless compensation for such agreements is directly linked to the performance of migration control in these countries. Whether the Articles on State Responsibility set too high a standard in this respect has been a matter of debate – it will often be difficult to establish knowledge and intent in cases where assisting states simply show ‘deliberative indifference’ in regard to human rights abuses occurring as a consequence of their aid and assistance.72   Crawford, ‘Articles on State Responsibility’, p. 149.   Ibid. 71   R. Byrne, G. Noll and J. Vedsted-Hansen (eds), New Asylum Countries? Migration Control and Refugee Protection in an Enlarged European Union, The Hague: Kluwer Law International 2002, p. 16. 72  M. Gibney, K. Tomaševski and J. Vedsted-Hansen, ‘Transnational State Responsibility for Violations of Human Rights’, (1999) 12 Harvard Human Rights Journal, p. 267–296 at p. 294; J. Howard, ‘Invoking State Responsibility for Aiding the Commission of International 69 70

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In case of the Italian-Libyan Treaty however, both of the above requirements appear to be fulfilled. The purpose of the Treaty clearly covers prevention of irregular migration to Italy. Given the number of succesful asylum-seekers among those arriving at Lampedusa before cooperation started and available information of Libya’s lacking record in regard to refugee protection, there is furthermore little doubt that Italy ‘had knowledge’ that cooperation in this area would entail a denial of refugees’ access to asylum and consequent violations of the non-refoulement principle and possibly other human rights violations by Libyan authorities. At the signing ceremony for the Italian-Libyan Friendship Treaty, Libyan leader Muammar Gaddafi even outright denied that there are any political refugees in Africa.73 Similarly, Italian involvement is not simply incidental to actions that Libya might undertake anyway. Rather, it seems evident that Italian assistance is ‘significantly contributing’ to the interdiction of protection-seekers. Although the larger financial compensation to Libya of 5 billion dollars is directed towards general investments in Libya, the provision of patrol boats and other equipment and secondment of Italian authorities were explicitly intended for this purpose. There can thus be little doubt that Italy has provided material aid and other assistance with both intent and knowledge that this would be used by Libya to commit actions that would result in human rights violations of migrants and refugees. The third condition limits international responsibility to cases where the act would equally constitute an international wrong if committed by the assisting state itself. This should be read in consonance with the principles embodied in Arts. 34 and 35 of the Vienna Convention on the Law of the Treaties setting out that no state is bound by the obligations of another state vis-a-vis third states.74 This requirement has given rise to some uncertainty as to whether article 16 would conversely apply in situations where the act would be contrary to treaty obligations owed by the assisting state but not by the principal state. This may well be the case when outsourcing migration control. Libya, for instance, is not a party to the 1951 Refugee Convention. Neither is Nauru,

Crimes Australia, The United States and the Question of East Timor’, (2001) 2 Melbourne Journal of International Law, p. 1–41 at p. 12–13. 73   ‘As for political asylum, Africans have no problems with politics, none at all. That is one of the tricks and lies you hear. They say, ‘We are here for political asylum’. Africans do not have this problem. These are people who live in the jungle, in the deserts. They know nothing about parties, election or opposition. Political asylum? How many should have political asylum? Millions? Millions pour into Europe. Do they all want political asylum? It is hilarious.’ Translated from Arabic by SBS. Dateline, ‘The Italian Solution’, SBS Australia, 26 July 2009. 74   Crawford, ‘Articles on State Responsibility’, p. 149.

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which was used for offshore asylum processing in the context of Australia’s ‘Pacific Solution’ interdiction scheme.75 That an assisting state cannot be held responsible for human rights violations only owed by the principal state does not however preclude the opposite situation, namely that an assisting state can be held responsible for breaches of treaty obligations only owed by the assisted state. As the commentary underscores, the guiding principle is that ‘a State cannot do by another what it cannot do by itself.’76 The fact that Libya is not a signatory to the Refugee Convention thus does not alleviate Italy’s responsibility for assisting Libya in conduct that would constitute a violation of article 33 of the Convention had the actions be carried out by Italy itself. Similarly, following this line of interpretation, outsourcing governmental functions like migration control to third states must not be used as a pretext for escaping obligations owed under regional human rights treaties, in the present context especially the European Convention on Human Rights. Lastly, article 16 raises certain questions in regard to determing what kind of responsibility is incurred by an ‘aiding or assisting’ state. Contrary to instances where the outsourcing state directs or coerces the acting state, the primary responsibility for human rights violations under article 16 remains with the acting State.77 Accordingly, the responsibilitity of the assisting state ‘must not be confused with this principal offence, and consequently the international responsibility deriving from it must remain separate from that incurred by the State committing the principal offence.’78 The Articles contain few clues as to how responsibilities should be divided and separated, yet this distinction is important and serves to limit the responsibility of the assisting states to violations flowing from its own conduct. One concern when applying the ILC Articles to instances of international cooperation in regard to migration control may be that it is likely to creat a plethora of situations where more than one state may be argued to be responsible for processing asylum claims and take on subsequent protection obligations. The notion of ‘principal responsibility’ would seem to suggest that to the extent that effective protection is in principle available from the acting territorial state, this would be the preferred party to take on protection obligations. However, crucial in this interpretation is the affirmation that where this is not   S. Kneebone, ‘The Pacific Plan: The Provision of ‘Effective Protection’?’, (2006) 18 International Journal of Refugee Law, p. 696–722. 76   Crawford, ‘Articles on State Responsibility’, p. 149. 77   Crawford, ‘Articles on State Responsibility’, p. 148. 78   International Law Commission, ‘Report of the International Law Commission on the Work of its 30th Session’, Yearbook of the International Law Commission 1978, Pt. II, p. 104. 75

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the case an underlying responsibility is borne by the assisting state for ensuring that protection obligations are met, and that this may involve initiating asylum procedures and relocation to the territory of the assisting state where refugee rights cannot be guaranteed by the acting state. Realising this underlying, or subsidiary, human rights responsibility will be particularly important in cases where migration control is outsourced to countries evidently lacking refugee protection and human rights standards. It is in this sense highly questionable whether the current cooperation scheme with Libya would in any way relieve Italy or other European states entering into similar cooperation of legal obligations under international refugee and human rights law in regard to protection-seekers and refugees. 6. Conclusion Following the first phase of European harmonisation in the area of asylum, Elspeth Guild disappointedly concluded that the European Union has become ‘a territorial integration project which is hostile to refugees’.79 Possible developments in the EU asylum acquis notwithstanding, it is certainly true that Europe has become a territorial project seeking to distance its legal order from the actual denial of refugees’ access to asylum, which today increasingly takes place long before they reach the physical EU border. Whether it be under EU auspices, such as the Frontex coordinated interception operations across the Mediterranean and the EU’s network of immigration liaison officers, or bilateral intercepton and outsourcing schemes, such as those implemented between Italy and Libya or Spain and Senegal, European migration control is increasingly carried out inside foreign jurisdictions and even by foreign authorities. By shifting control to the territory or authorities of third states a space is sought carved out where the sovereign prerogative to control entry into its territory may be asserted without the constraints ordinarily posed by refugee and human rights law. In the process correlated protection obligations otherwise owed are either deconstructed or at best shifted to third states. Notably, this move is premised on the exact same principles that cement a state’s protection obligations within its own territory. As migration control is outsourced the sovereignty and territorial jurisdiction of another state is invoked, which in turn creates an initial presumption against jurisdiction and responsibility of

  E. Guild, ‘The Europeanisation of Europe’s Asylum Policy’, (2006) 18 International Journal of Refugee Law, p. 630–652 at p. 634.

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the outsourcing state. This is the core dynamic behind what may be charac­ terised as a growing trend towards ‘jurisdiction shopping’ in the field of migration control. The more resourceful and traditional asylum countries increasingly negotiate agreements to shift migration control to foreign states who, in turn, commercialise their territorial jurisdiction and/or place their national authorities at disposal. As this article has shown however, human rights and refugee law do extend beyond borders. Despite the arguments forwarded by some states, there can be little doubt that core obligations under the 1951 Refugee Convention, notably the principle of non-refoulement, extends extraterritorially to wherever a state exercises jurisdiction. Reviewing the general human rights case law in this area, it is also clear that migration control will amount to an exercise of jurisdiction for the purpose of human rights responsibility in many, if not necessarily all, of the current policies to shift migration control to foreign territorial waters or territory. Moreover, general principles of public international law make clear that states aiding or assisting another state may equally be held responsible for consequent human rights abuses. While the Articles on State Responsibility set a high threshold for establishing knowledge and intent of the assisting state, these requirements may nevertheless be fulfilled in cooperation schemes such as that forged through the Italian-Libyan Friendship Treaty. Last, but not least, both of these areas of law are still very much developing. More and more cases dealing with the externalisation of migration control and related human rights issues are emerging. It will thus remain a challenge for both national and international judiciaries to develop notions of jurisdiction and attribution that fits our global age and thus avoids creating a further incentive for states to move the less palatable issues of governance to foreign territories and authorities with all that follows from this in terms of a shrinking of the rule of law and breaking of the link between legitimacy and power.

The Long-Term Residents Directive: A Fulfilment of the Tampere Objective of Near-Equality? Louise Halleskov Storgaard 1.  Introduction: Third-country Nationals and the European Union Prior to the entry into force of the Amsterdam Treaty, Community law had for a long period of time served to legitimate unequal treatment of EU nationals and third-country nationals (TCNs). The EC Treaty was entirely silent on the issue of rights of TCNs – the only exception being if TCNs were able to derive rights either from EU citizens exercising their freedom of movement (i.e. as a family member of a free-mover or as a worker of an EC company providing services in another Member State) or from an Association or Coopera­tion agreement concluded between the Community and a third country. EU nationals engaging in a gainful activity in another Member State, in contrast, have effectively since the 1987 European Single Act been able to benefit from the comprehensive EC acquis on the freedom of movement of persons, underpinned by the principle of non-discrimination based on nationality, which secures them a right to equality of treatment with nationals of the host Member State in respect of a wide range of social, economical and political rights. The 1997/1999 Amsterdam amendments to the EC Treaty, which empowered the Community to adopt measures in the policy areas of immigration and asylum, gave rise to hope for a more communitarian and inclusive Com­ munity approach towards TCNs.1 This hope was reinforced by the 1999 Tampere European Council, which – when setting out the political guidelines for the EC immigration policy – called for the creation of a uniform set of rules through which ‘fair treatment’ of all TCNs residing legally in the EU Member States should be ensured.2 Particularly in respect of long-term resident TCNs, the Tampere Council envisaged that a vigorous integration policy

  Title IV EC (now as amended Title V TFEU). Cf. Protocols (4) and (5) annexed to the EU and EC Treaties (now attached to the Treaties by the Lisbon Treaty) for the reservations of Denmark, the United Kingdom and Ireland. 2   Tampere European Council conclusions, para. 18. 1

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should aim at granting this group of TCNs ‘a set of uniform rights which are as near as possible to those enjoyed by EU citizens’.3 This article focuses on Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents4 from the perspective of long-term resident migrants working in an employed capacity in one of the Member States. The main question this article seeks to answer is whether the legal status accorded to this particular group of TCNs by the Directive in respect of equality rights fulfils the Tampere vision of ‘near-­ equality’. For the purpose of this examination, EC law governing the freedom of movement of EC workers will be used as the yardstick. No independent definition of ‘near-equality’ exists in European law and it is therefore not possible to determine exactly what this concept amounts to as regards long-term resident migrant workers. Nevertheless, a comparison of the legal status granted to TCN migrant workers by the Directive with that of EC workers seems to be the most appropriate method for determining whether the Tampere goal has been realised. The general standard set by the Directive will be critically assessed as part of the analysis, and various international and regional human rights instruments as well as several of the international agreements concluded between the Community and third countries will be used as standards of reference. It needs to be stressed that the focal point of this article is the Long-term Residents Directive. Thus, the intention is not to provide a detailed analysis of either EC free movement law or all the relevant human rights instruments and international agreements. The article falls in two parts. The first part deals with the Directive in general and some key issues relevant for the analysis conducted in the other part of the article. The second part of the article focuses on one of the main rights of long-term residents as it examines to which extent equality of treatment between long-term resident migrant workers and nationals of the host Member State is realized by Article 11 of the Directive. This examination will not only determine whether the goal established by the Tampere Council has been achieved by the Directive, but also reveal whether Community law from now on will reflect social cohesion – which is one of the Union’s fundamental objectives5 – or continue to promote a legal system based on social injustice with large groups of TCNs treated as ‘second class citizens’.

  Tampere European Council conclusions, para. 21.   OJ 2004 L16/44. Hereinafter referred to as ‘the Long-term Residents Directive’ or simply ‘the Directive’. 5   Article 2 EU (now as amended Art. 3 TEU). 3 4

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Other groups apart from TCN migrant workers are covered by the Directive – for instance TCN family members of both EU nationals and longterm resident TCNs – but their legal status will, due to the limitations of this article, not be examined separately. For the same reason the right to enjoy security of residence and the right to freedom of movement set out in Chapter III of the Directive – which are the two other main rights flowing from the long-term resident status – will not be discussed. Five years have passed since the first publication of this article and developments have occurred in the areas covered – in relation to both EU law and the various human rights standards. The objective of this article remains the same: to assess the Member States’ willingness during the negotiations on and adoption of the Directive to give legal effect to the Tampere visions, and it seems most appropriate to (continue to) do so in the context in which the Directive was adopted. Although the article has been updated and revised, the EU and human rights standards existing at the time of the Directive’s adoption are therefore maintained as yardsticks. References to significant developments since the article was first published are primarily made in the footnotes. For the same reason, section 2.3 on the role of the European Court of Justice (the Court) has not been updated; instead comments on the Court’s post-Lisbon jurisdiction and case law are made in a new final section of the article which highlights the relevant developments in the long-term residents area since 2005. In light of these considerations, the article continues to apply the preLisbon nomenclature and thus refers to ‘the Community’, ‘EC rules’ etc. except where this would be clearly inappropriate. Furthermore, the old numbering of the Treaties is maintained with the new numbering added in square brackets when deemed appropriate. 2.  The Long-term Residents Directive 2.1.  The Structure and General Approach of the Directive The Commission tabled its proposal for a long-term residents directive in the spring of 2001,6 but the Council, due to protracted deliberations, did not reach political agreement until June 2003. The Directive was subsequently formally adopted in November 2003. It is based on Article 63(3)(a) EC (now as amended Art. 79(2)(a) TFEU) and Article 63(4) EC (now as amended Art. 79(2)(b) TFEU) and seeks to fulfil a twofold purpose: (1) to approximate

  COM (2001) 127 final (OJ 2001 C240/79) (hereinafter referred to as ‘the proposal’).

6

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national legislation and practice regarding the grant of long-term residents status to TCNs residing legally in a Member State, and (2) to determine the conditions under which long-term residents may exercise a right to freedom of movement.7 The Directive consists of four Chapters. Chapter I (Articles 1–3) states the Directive’s purpose, definitions and scope. Chapter II (Articles 4–13) lays down the rules concerning the grant of long-term resident status and the important rights of long-term residents to equal treatment and security of residence. Long-term residents’ right to free movement is dealt with in Chapter III (Articles 14–22). Chapter IV (Articles 24–28) sets out the final provisions. As a whole the Commission’s proposal was significantly watered down by the Council. Both the proposal and the final directive assume fundamental inequality between TCNs who have acquired the long-term resident status and EU nationals, as both measures, instead of introducing an overarching principle of equality, specify the areas in which equality of treatment is to be realised.8 The main difference between the two measures is found in the approach chosen to put this fundamental inequality into effect. The Commis­ sion’s proposal is by and large modelled on the existing EC rules on freedom of movement of workers; it does introduce various additional conditions and limitations compared to the EC rules, but these are all defined very strictly in order to offer TCNs maximum legal certainty. The final Directive, on the other hand, adopts a distinctively less inclusive approach towards TCNs as it is founded on the existing national immigration rules of the Member States; indeed the negotiations in the Council were marked by the determination of several of the Member States to retain their national prerogatives on key issues and to restrict the rights of long-term residents as much as possible. Germany, followed by Austria, was the key proponent of this approach, and these two Member States jointly succeeded in introducing numerous controversial amend­ments to the proposal – a number of which will be discussed in this article. In his well-known 2001 article Groenendijk warned that a Community approach to rights of TCNs that takes the national immigration rules as its starting point, ‘tends to produce instruments that are close to the lowest   Article 1.   This approach is to be contrasted with Article 24 of Directive 2004/38/EC on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States, which states that equal treatment between nationals and free-movers is the principal rule (OJ 2004 L229/35) (this directive is hereinafter referred to as the ‘Citizens Directive’).

7 8

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common multiple’.9 The analysis conducted in this article will reveal whether this assertion has proved to be correct in the case of the Long-term Residents Directive. 2.2.  Acquisition of the Long-term Resident Status by Migrant Workers The main focus of this article is on one of the rights which TCN migrant workers are able to benefit from once they have obtained the long-term resident status. The intention of this section is to provide a broad overview of how this status is acquired and to identify and briefly discuss some of the key issues and concerns arising hereof. The relevant provisions of the Directive are in principle considered from the perspective of migrant workers; however, it is unavoidable that the examination in this section is of a more general nature. Scope of the Directive Article 3(1) stipulates that the Directive applies to all TCNs residing legally in the territory of a Member State, but Article 3(2)(a)-(f) excludes large groups of TCNs from its scope – i.e. students, persons benefiting from subsidiary or temporary protection, refugees, persons who reside on temporary grounds and diplomats. The two most controversial omissions are refugees and persons benefiting from a subsidiary form of protection.10 Economic migrant workers are not among the excluded groups, but they risk being affected by a controversial Council amendment to Article 3(2)(e). The intention of this provision is to preclude TCNs who reside in a Member State solely on temporary grounds, such as au pairs or seasonal workers, from qualifying for the long-term resident status;11 however, the final part of Article 3(2)(e) also excludes TCNs ‘in cases where their residence permit has been formally limited’. This sentence was inserted during the Council negotiations upon suggestion from Belgium without any clarifying explanation,12 which is regrettable since the amendment can be interpreted as providing the Member States with the opportunity of excluding large groups of TCNs from the  K. Groenendijk, ‘Security of Residence and Access to Free Movement for Settled Third Country Nationals under Community Law’, in E. Guild and C. Harlow (eds.), Implementing Amsterdam: Immigration and Asylum Rights in EC Law, Oxford: Hart Publishing 2001, pp. 225–240, at 230 (hereinafter referred to as ‘Groenendijk’). 10   In 2007 the Commission presented a proposal to close this gap, COM (2007) 298 final (OJ 2007 C 191/05), cf. section 5 below. 11   Explanatory memorandum to the proposal, p.12. 12   Council Doc. 8408/03.  9

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Directive’s scope based on national law.13 Hence, a literal interpretation of Article 3(2)(e) merits the conclusion that a TCN will not be able to qualify for the long-term resident status until the host Member State grants him or her an unlimited residence permit – which a Member State very rarely (if ever) does immediately after admitting a TCN to its territory.14 Conditions A TCN will have to meet a number of conditions before he or she can obtain the long-term resident status and enjoy the rights emanating hereof. Firstly, Article 4(1) of the Directive dictates that TCNs must have resided legally and continuously in the territory of the Member State concerned for five years.15 This five-year criterion is in line with leading human rights instruments in this area – i.e. the International Labour Organisation (ILO) Convention C.97, the Council of Europe (COE) Convention on Establishment as well as the 2000 COE Recommendation of the Committee of Ministers on the security of residence of long-term migrants.16 It is worth noting, though, that the choice of a five-year period of residence implies that the Directive fails to provide a homogenous long-term resident Community status as Turkish workers pursuant to Decision 1/80 of the Association Council can invoke more favourable protection than other long-term residents.17 Moreover, those five Member States that are state parties to ILO Convention C.143 are, according to Article 14(a) of this convention, obliged to grant TCN migrant workers who have resided and worked legally in their territory for more than two years unlimited access to the labour market after two years instead of five.18 Article 4(1) raises two interrelated issues of temporal scope. The first one is whether the Directive applies to persons who reside in a Member State at the time of its implementation/adoption or only to TCNs who enter a Member State after this date. The first solution is most likely the correct one as neither the wording of Article 4(1) nor its travaux préparatoires supports a narrow   E. Guild, The Legal Elements of European Identity, EU Citizenship and Migration Law, The Hague: Kluwer Law 2004, chapter 12, p. 224–226. 14   S. Peers, ‘Implementing equality? The directive on long term resident third country nationals’, (2004) 29(4) E.L.Rev. 437, p. 443, argues that the definition of a limited residence permit is an issue of Community law and therefore to be interpreted strictly. 15   The recently adopted Blue Card Directive (Directive 2009/50, OJ 2009 L155/17) introduces a simplified procedure for acquisition of long-term residents permits for Blue Card holders. See S. Peers, ‘Legislative Update: EC Immigration and Asylum Law Attracting and Deterring Labour Migration: The Blue Card and Employer Sanctions Directives’, (2009) 11 European Journal of Migration and Law, p. 399–402, for an analysis hereof. 16   Hereinafter referred to as ‘the 2000 COE Recommendation’. 17   Cf. section 3.1. 18   Cf. section 3.1. 13

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interpretation.19 A related question of huge practical relevance is from what point the five-year time period is to be calculated – i.e. does the Directive apply to TCNs who fulfil its criteria when it enters into force (a) or is the Directive’s appliance conditioned upon five years of legal residence after its adoption/implementation (b). The answer is not entirely obvious. Nevertheless, an interpretation of the wording ‘have resided’ (cf. the universal principles of interpretation of international law) seems to support (a), which interpretation also tallies the best with the objectives of the Directive as well as the Tampere near-equality principle.20 Secondly, Article 5(1)(a)-(b) requires that TCNs shall provide evidence that they have, both for themselves and their family members, stable and regular resources, which are sufficient to maintain them without recourse to the social assistance system, and a sickness insurance covering all risks normally ­covered in the Member States concerned.21 The proposal defined the ‘stable and r­ egular resources’ condition by strict objective criteria in order to avoid rendering eligibility for the long-term resident status nugatory.22 The Council, however, opted in favour of a more ambiguous wording of Article 5(1)(a) in order to grant the Member States greater leeway in assessing whether this condition is fulfilled. Thus, the Member States are now to ‘evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions prior to the application for the long-term residents status’.23 Thirdly, in addition to the conditions set out in Article 4(1) and Article 5(1) (a) and (b), which the Member States are obliged to impose on all TCNs applying for the long-term resident status,24 the Directive introduces two other conditions which the Member States ‘may’ require TCNs to meet – both new compared to the proposal. Article 5(2), which allows the Member States to require TCNs ‘to comply with integration conditions, in accordance with national law’,25 is the result of strong advocating by Germany, Austria and the   Cf. Peers, n. 14 above, p. 443.   This point is inspired by remarks made by R. Cholewinski. See also Peers, n. 14 above, p. 444. 21   These conditions are almost identical to those found in Article 7(1)(b) and (c) of Directive 2003/86/EC on the right to family reunification (OJ 2003 L251/12) (hereinafter referred to as the ‘Family Reunification Directive’). 22   Explanatory Memorandum to the proposal, p. 15. 23   Interesting in this respect is the recent judgment of 4 March 2010 in Case C-578/08, Chakroun v. Minister van Buitenlandse Zaken, where the Court ruled on a similar provision in Article 7(1)(c) of the Family Reunification Directive, cf. section 5 below. 24   Cf. the word ‘shall’. 25   Article 15(3) of the Directive and Article 7(2) of the Family Reunification Directive refer to ‘integration measures’. On both types of conditions see inter alia S. Carrera and A. Wiesbrock, Civic Integration of Third Country Nationals. Nationalism versus Europeanisation in the 19 20

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Netherlands for inserting a subjective condition into the Directive and stems from the national legislation of these countries.26 The condition lends itself to no precise definition and appears to accord the Member States with a carte blanche to introduce a wealth of conditions under the heading ‘integration’. Similar worries exist in respect of the final condition of Article 7(1) which permits the Member States to demand documentation ‘with regard to appropriate accommodation’.27 This provision is, by the way, misleadingly to be found in Article 7(1) of the Directive concerning mainly administrative measures instead of in either Article 4 or Article 5 where the conditions for acquisition of long-term resident status are found. Granting of the Status Acquisition of the long-term resident status by a TCN is conditioned on him or her lodging an application with the relevant authorities in the Member State concerned along with documentary evidence of him or her meeting the above referred conditions.28 A Council amendment to Article 7(1) permits the Member States to require that the application is also accompanied by valid travel documents. This amendment is arguably inexplicable considering that the TCNs in question all have resided legally in the Member State concerned for at least five years, cf. Article 4(1). Article 7(3) stipulates that if a TCN satisfies the above referred conditions, the Member State concerned ‘shall grant’ to him or her the long-term resident status. It is impossible to maintain, though, considering the significant amount of discretion given to the Member States in respect of assessing whether the conditions are fulfilled, that the granting of long-term resident status is rightsbased.29 Article 6 of the Directive, which allows the Member States to reject Common EU Immigration Policy, Brussels: Centre for European Policy Studies (CEPS) 2009, p. 13, and E. Guild, K. Groenendijk and S. Carrera, ‘Understanding the Contest of Community: Illiberal Practices in the EU?’, in E. Guild, K. Groenendijk and S. Carrera (eds.) Illiberal Liberal States. Immigration, Citizenship and Integration in the EU, Ashgate: Surrey 2009, p.1–25, at p. 8. 26   E.g. Council Docs. 10698/01, 12983/01 and 12217/02. 27   Peers, n. 15 above, p. 444, argues that it is impermissible to impose an accommodation requirement for the grant of long-term resident status, given that Article 8 ECHR prevents the Member States from expelling a TCN who does not meet this requirement. This argument appears to be based on a misunderstanding considering that a Member State’s refusal of grant of status to a TCN does not necessarily entail that he or she is expelled. Moreover, it is by no means undisputable that Article 8 ECHR prohibits the Member States from imposing an accommodation condition which is legitimate and proportionate. 28   Article 7(1). 29  See E. Guild, ‘Discretion, Competence and Migration in the European Union’, (1999) 1 European Journal of Migration and Law, p. 61–87, on the tension between a discretion-based and a rights-based approach.

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granting the long-term resident status to a TCN on ‘grounds of public policy or public security’, buttress this argument: this provision sets very few limits for the Member States’ room for manoeuvre in respect of these broad concepts30 – in fact it does not even explicitly require that the TCN shall constitute a concrete ‘threat’ to any of those interests. 2.3.  Interpreting the Directive The examination above shows that several of the provisions of Chapters I and II of the Directive are vague and ambiguous in terms and thus open to numerous possible interpretations. It can be revealed, without going into any detail with the analysis conducted below, that the majority of the other provisions of the Directive are suffering from similar weaknesses. The success of the Direc­ tive in respect of integrating TCNs into the Community will therefore to a large degree depend on how the national legislative authorities choose to interpret these wide provisions when transposing the Directive into their national legislation. In this respect it is highly unfortunate that the Council chose not to include a stand-still clause in the Directive in that such would have prevented the Member States from ‘harmonizing downwards’ – i.e. lowering higher national standards to conform to the standard of the Directive. The Member States retain the possibility of maintaining or developing a more favourable national long-term resident status, cf. Article 13. Considering the general attitude expressed by the Member States during the Council negotiations, it is however more likely that the majority of the Member States will interpret their obligations under the Directive narrowly and seek to retain as much control as possible over the granting of rights to long-term resident TCNs. The Court will for this reason play an important part in determining the future impact of the Directive. Peers, in his analysis of the Long-term Residents Directive, argues that there is basis in the preamble of the Directive for the assertion that ‘any ambiguity in the text of this Directive should be resolved in favour of the long-term resident and family members as far as possible. As a corollary any exception to their rights should be interpreted narrowly’.31 Peers bases his argument on the preambular references to the Tampere conclusions along with the objectives of integration of TCNs, of an enhancement of the internal market and of economic and   Article 6(1) lists a group of factors which the Member States are obligated to have regard to, and Article 6(2) stipulates that the refusal must not be founded on economic considerations. The wide Member State discretion provided by this provision is in contrast with the strict criteria laid down in Chapter IV of the Citizens Directive. 31   Peers, n. 15 above, p. 440. 30

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social cohesion, which are also spelled out in the preamble.32 It is, due to the limitations of this article, not possible to comment thoroughly on this statement, however it can be observed that Peers’ line of reasoning is not entirely obvious. The preamble does indeed contain the referred references along with other declarations of rights of TCNs.33 Noteworthy is, however, that the majority of these rights are qualified and/or phrased in a negative manner. For instance, recital 12, which lists the objective of equality of treatment of long-term residents with EU nationals, states that this right is to be enjoyed by long-term residents ‘under the relevant conditions defined by this Directive’. Furthermore, the Tampere conclusions do not confer any explicit right to equality of treatment on TCNs, and it is safe to say that it is unclear which importance the Court will attach to these conclusions. Consequently, it is disputable whether the objectives/declarations in the preamble of the Directive constitute a strong basis for a progressive approach by the Court. Additionally, it is worth keeping in mind when examining the Directive that the Court’s future work as regards all the adopted Title IV measures is hampered by two factors in particular. The first one being the fact that the Court’s competence to give preliminary rulings in cases under Title IV EC is significantly limited as a result of Article 68(1) EC since only national courts of final instance can refer a Community matter to the Court (however are under no obligation to do so, not even if the Community issue in question is not obvious).34 This limitation entails that it will take longer both for interpretative questions to reach the Court and before the ECJ will be able to exercise its traditional role of ensuring coherence and uniformity.35 Second, several scholars have rightly pointed to the fact that Title IV lacks a clear Treaty objective, which the Court can apply as the basis for restricting the Member States’ discretion.36 Article 14(2) EC (now Art. 26(2) TFEU) and   Ibid.   E.g. recital 16: ‘long-term residents should enjoy reinforced protection against expulsion’. 34   That is in contrast to the Member States’ obligations under Article 234 EC (now Art. 267 TFEU). Cf. Case C-283/81, CILFIT [1982] ECR 3415. See P. Craig and G. de Burca, EU Law: Text, Cases and Materials, 3rd ed., Oxford: Oxford University Press 2003, at Chapter 11 for an in-depth examination of the procedure and requirements of Article 234 (hereinafter referred to as ‘Craig and De Burca’). For an examination of the Court’s jurisdiction pursuant to Article 68 EC see E. Guild and S. Peers, ‘Deference or Defiance? The Court of Justice’s Jurisdiction over Immigration and Asylum’, in: E. Guild and C. Harlow (eds.), Implementing Amsterdam: Immigration and Asylum Rights in EC Law, Oxford: Hart Publishing 2001, p. 277–283. 35   See E. Guild, ‘Competence, discretion and third country nationals: the European Union’s legal struggle with migration’, (1998) 24 Journal of Ethnic and Migration Studies 613, p. 619. 36   E.g. Guild, n. 30 above, p. 85–87. 32 33

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the individual rights found in Articles 39 EC (now Art. 45 TFEU), 43 EC (now Art. 49 TFEU) and 49 EC (now Art. 56 TFEU), which form the foundation for the Court’s rights-based approach within the field of freedom of movement of EU nationals, all set out explicit goals and confer clear rights on individuals. In contrast, Title IV does not spell out any rights or common goals in respect of TCNs, except perhaps intra-EU movement.37 As a result there is little support in the EC Treaty in favour of the Court applying a strong and ‘individual-orientated’ interpretation in favour of TCNs under Title IV. 3.  Equal Treatment Long-term resident TCN migrant workers who have been granted the longterm resident status (LTRs) are by virtue of Article 11(1) of the Directive entitled to enjoy equality of treatment with nationals of the host Member State in a number of areas. This right is at the core of the Tampere principles and its effective enjoyment by LTRs a prerequisite for their integration into the Community. One can argue that the mere existence of Article 11 is regrettable since it signals that the Community does not believe that even people who have resided for more than five years in a Member State and fulfilled the numerous conditions laid down in Chapter II of the Directive are worthy of genuine equality of treatment in all areas of life. This approach of fundamental inequality is however not surprising, considering that equality rights of TCNs are generally a very sensitive EC issue; even though Community law in recent years has introduced a number of new provisions to fill the lacuna arising from the non-inclusive interpretation of Article 12 EC (now Art. 18 TFEU) and Article 39 EC (now Art. 45 TFEU),38 the attempts have all deliberately avoided offering TCNs the prerequisite for them to enjoy true equality of treatment.39 Thus, Article 13 EC (now Art. 19 TFEU) does not encompass   Article 61(1)(a) EC.   The narrow interpretation of ex Articles 12 EC and 39 EC (both provisions are generic in terms, i.e. ‘persons’ and ‘workers’) has been criticized by several scholars, e.g. T. Hoogenboom, ‘Integration into Society and Free Movement of Non-EC Nationals’, (1992) 3 EJIL, p. 36–52. 39   It has been argued that the entry into force of the Amsterdam amendments to the EC Treaty entailed that ex 12 EC also applied to ex Title V EC and therefore precluded arbitrary distinctions between different groups of third-country nationals, cf. R. Cholewinski, Borders and discrimination in the European Union, ILPA report, 2002, at p. iii. For recent, similar, ­reasoning see C. Hublet, ‘The Scope of Article 12 of the Treaty of the European Communities vis-à-vis Third-Country Nationals: Evolution at Last?’, (2009) 15 E.L.Journal 757, p. 757–774; and 37 38

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discrimination based on nationality,40 and the prohibition of such discrimination featured in Article 21(2) of the Charter only applies ‘without prejudies to’ special provisions of the Treaties. Equally illustrative of the controversial nature of TCN equality rights is the fate suffered by the non-discrimination clause included in Article 4 of the Commission’s proposal for the Directive. This provision did not prohibit discrimination based on nationality since it was substantively based on Article 21(1) of the Charter. The Council, nevertheless, preferred moving it to the preamble (recital 5).41 In light of these observations it is not surprising that Article 11 was one of the most controversial provisions during the Council negotiations. Germany – with support from Austria – persistently advocated for restricting its scope and for more discretion to be left with the Member States.42 In fact early on in the negotiations the German Government explicitly expressed its wish to entirely ‘depart[ing] from the idea of equality of treatment’.43 Article 11 will in the following sections be critically examined. Focus will be on the controversial parts of this provision, i.e. the areas in which it appears that the Directive differs significantly from the EC rules on free movement of workers and/or international standards. 3.1.  Employment Rights (Article 11(1)(a) ) Article 11(1)(a) of the Directive professes to secure LTRs equal treatment with nationals as regards access to employment and conditions of employment. As far as working conditions are concerned, this right is absolute and LTRs are presumably entitled to a legal status somewhat similar to that enjoyed by EC workers pursuant to Article 45(2) TFEU and Article 7(1) of Regulation 1612/68.44 This issue will therefore not be discussed further. The right to access to the labour market is, on the other hand, subject to a number of restrictions which all merit close evaluation.

H. de Waele, ‘EU Citizenship: Revisiting its Meaning, Place and Potential’, (2010) 12 European Journal of Migration and Law 319, p. 331–332. 40   The Commission proposed that the Racial Equality Directive (OJ 2000 L180/22) within its scope should prohibit nationality discrimination, but this ground was excluded by the Council. 41   Non-discrimination clauses included in the other main Commission proposals based on ex Title IV suffered a similar fate. 42   E.g. Council Docs. 13420/01 and 6418/03. 43   Council Doc. 9636/02, p. 7. 44   The extent of this equality of treatment is of course dependent on the future interpretive approach of the Court, cf. sections 2.3 and 5.

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Access to the Labour Market Access to employment for TCNs is a highly sensitive political issue, which falls within the core of the socio-economical concerns of Member States in relation to immigration. Illustrative in this respect is the German attempt, in the wake of the Amsterdam Treaty, to introduce an interpretation of Article 63 EC (now Articles 78 and 79 TFEU, as amended), which entitles the Member States to deny TCNs access to the labour market.45 The legal position of EC citizens seeking work in another Member State is clear: Articles 39(2) EC and 39(3) (a),(b) and (c) EC together with Articles 1–6 of Regulation 1612/68 prohibit direct and indirect discrimination by the Member States in favour of nationals. Only three main exceptions to this rule are allowed: (i) restrictions on employment in the public services,46 (ii) restrictions justified on the grounds of public policy, public security or public health47 and (iii) restrictions justified on the basis of the lack of linguistic knowledge.48 In addition, these persons can under certain circumstances be entitled to jobseeker’s allowance.49 With the exception of access to jobseeker’s allowance, the Commission’s proposal basically extended these EC rules to LTRs, the only visible difference  being that LTRs were not granted access to jobs ‘entailing even occasional involve­ment in the exercise of public authority’.50 This limitation, which is included in the final Directive as well, obviously covers a considerably wider range of jobs than Article 39(4) EC, which provision has been interpreted very restrictively by the Court.51  K. Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, (1998) 35 CMLRev 1047, p. 1051–1052; and Groenendijk, n. 11 above, p. 235, where he argues that the German interpretative declaration has not reached its goal. An equally illustrative recent example is the new provision on a common immigration policy in Article 79 TFEU (ex Article 63(3) and (4) EC, as amended) which in paragraph 5 allows Member States to ‘determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work’. 46   Art. 39(4) EC. 47   Art. 39(3) EC. 48   Art. 3(1) of Regulation 1612/68. 49   Cf. Case C-138/02, Collins, [2004] ECR 2703, para. 70. The Court elaborated on this case law in the recent joined Cases C-22/08 and C-23/08, Vatsouras, [2009] ECR I-4585, where the Court also determined (para. 45) that benefits intended to facilitate access to the labour market do not constitute ‘social assistance’ within the meaning of Article 24(2) of the Citizens Directive. 50   Article 12(1)(a) of the proposal. 51   The Court has consistently ruled that the Member States can only invoke Article 39(4) EC if the given job involves both the exercise of power conferred by public law and the safeguarding of the general interests of the state, cf. Case C-66/85, Lawrie-Blum, [1986] ECR 2121, para. 27. 45

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Article 11(1)(a)’s broad reservation of public employment from LTRs should be considered in connection with the optional derogation clause enshrined in Article 11(3)(a) of the Directive. The Member States ‘may’, pursuant to this provision, retain restrictions on LTRs’ access to employment ‘in cases where, in accordance with existing national or Community legislation, these activities are reserved to nationals, EU or EEA citizens’. This provision straight out allows the Member States to discriminate against LTRs on grounds of nationality and thus effectively serves to maintain a fundamental distinction between LTRs and EU/EEA nationals. This unfortunate legal position is deteriorated further by the fact that neither Article 11(3)(a) itself nor its travaux préparatoires indicate its exact scope of application. Hence, Article 11(3)(a) appears to provide the Member States with a carte blanche to discriminate and restrict the free access to employment of LTRs. The negative legal effects are to some degree averted by the requirement of the national legislation to be ‘existing’ – even though it is not specified whether this implies that the discriminating national legislation has to be in force at the time of the adoption of the Directive or merely at the date of its implementation. The travaux préparatoires offer little guidance in this respect: they reveal that Article 11(3)(a) was inserted upon suggestion from the Greek Presidency based on comments made by the delegations – first and foremost Germany – during the first and second reading of the Directive.52 They furthermore reveal  that the Presidency actually suggested two different wordings of the ­provision – the first of which specifically referred to the time of the Directive’s adoption as the deadline for introducing the derogating national legislation.53 The Council chose the second, present, phrasing of Article 11(3)(a) without specifying why. A rejection of one of two possible ways of interpreting a provision can normally, per contra, be viewed as an accept of the remaining solution – in this case meaning that the deadline would be the date of implementation. A weighty argument, however, suggests that such conclusion cannot be applied in the case of Article 11(3)(a): a study of the other main Title V measures adopted reveals that these all explicitly state which deadline is to apply in cases where the Member States are allowed to derogate.54 The correct understanding of Article 11(3)(a) therefore appears to be that the Council deliberately chose to leave its scope of application open. The Court will presumably clarify it in the future; nevertheless, it is unfortunate that legal uncertainty exists in respect of such a significant issue.

  Council Doc. 6418/03, p. 7.   Ibid., p. 8. 54   E.g. Article 4(1) subparagraph 2 and Article 4(6) of the Family Reunification Directive. 52 53

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Article 14(a) of ILO Convention C.143 concerning Migration in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers is relevant to consider in this context since this provision can be invoked to confine the State Parties’ leeway in respect of Article 11(3) (a) considerably. This provision, as mentioned above,55 stipulates that two years is the maximum period restrictions on migrant workers’ access to employment are allowed.56 Accordingly, those five Member States who are state parties to this Convention – i.e. Cyprus, Italy, Portugal, Slovenia and Sweden – are all in principle under a duty to disregard Article 11(3)(a) of the Directive in respect of TCN migrant workers who have resided and worked legally in their territory for more than two years. Article 14(a) of ILO C.143 presumably also entails (which perhaps is even more important) that these five Member States are obliged to disregard Article 4(1) of the Directive and grant migrant workers unlimited access to their labour market after two years instead of five. Article 3(3) of the Directive states that it is to apply without prejudice to more favourable provisions of bilateral/multilateral agreements concluded between the Community and third countries. Access to the labour market is one of the areas in which this stipulation is of particular importance. The EEA Agreement and the EC-Swiss Agreement basically extend the EC acquis on free movement of persons to nationals of Norway, Iceland, Liechtenstein and Switzerland. Accordingly, the beneficiaries of these agreements are secured the right to benefit from significantly more favourable rules than those laid down in the Directive – not only in respect of employment.57 TCNs of Turkish nationality are, based on Decision 1/80 of 19 September 1980 of the Associa­ tion Council, likewise entitled to employment rights more favourable than those contained in Article 11(1)(a) of the Directive: Article 6(1) of Decision 1/80 accords Turkish workers a right to look for any job within their field after three years of legal employment and free access to ‘any paid employment of his choice’ after four years of legal employment. Consequently, Turkish workers only have to wait four years instead of five as prescribed by Article 4(1) of the Directive before they are entitled to free access to the labour market.58 Another implication of Article 6(1) of Decision 1/80 is presumably that the broad   Section 2.2.   The only exception hereto being a public service reservation, cf. ILO C.143 Article 14(a). 57   These agreements will for this reason not be dealt with further in this article. 58   The Court has concluded that Article 6(1) of Dec.1/80 has direct effect, cf. Case C-192/89, Sevince [1990] ECR I-3461. M. Hedemann-Robinson, ‘An overview of recent legal developments at Community level in relation to third country nationals resident within the European Union, with particular reference to the case law of the European Court of Justice’, (2001) 38 CMLRev 525, p. 546. 55 56

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­ ublic service limitation in Article 11(1)(a) as well as the derogation clause p enshrined in Article 11(3)(a) of the Directive cannot be invoked by the Member States with regard to Turkish workers – or at least only to a limited extent. This conclusion seems obvious as the Court persistently interprets Decision 1/80 in conformity with the provisions on freedom of movement of Union workers and self-employed persons.59 It is therefore reasonable to assume that the Court will interpret restrictions imposed on Turkish workers in respect of public service employment in light of Article 39(4) EC and its case law hereon. In sum, it is fair to conclude that near-equality has been interpreted very loosely by the Council in respect of LTRs’ access to employment. The broad public service reservation is worrying, but the explicit access for the Member States to discriminate against LTRs based on nationality is the decisive factor; a provision like that, framed in such broad terms, must be regarded as being incompatible with the Tampere near-equality principle. This conclusion is regrettable, particularly as free access to employment is not only of economic importance for LTRs but also of crucial importance if the pattern of retaining TCN migrant workers in lower-paid and lower-skilled jobs has to be broken. 3.2.  The Territorial Limitation (Article 11(2) ) LTRs’ right to equality of treatment in respect of the rights listed in Article 11(1)(b),(d),(e),(f) and (g) – i.e. education, social and tax benefits, goods, housing and freedom of association – is subject to a general limitation introduced by Article 11(2) of the Directive, which deserves some clarification. It authorizes the Member States to restrict equal treatment ‘to cases where the registered or usual place of residence of the long-term resident lies within the territory of the Member State concerned’. This provision was inserted at a very late stage of the negotiations upon proposal from the Greek Presidency.60 No specific explanation for its insertion was offered, but it is in all probabilities to be viewed as an attempt to comply with the ‘restrictive’ Member States in general and the German and Austrian wishes to impose additional conditions on LTRs’ right to freedom of movement in particular. A general interpretation   Ibid., p. 542. The Court has based this interpretation on Articles 12–14 of the 1963 Ankara Agreement (the foundation of the EC-Turkey co-operation), which Articles explicitly dictate that the parties to the agreement are to be guided by the EC Treaty provisions on freedom of movement. Recent case law illustrates the Court’s approach of interpreting Dec. 1/80 in light of the principles of free movement of EU citizens, cf. inter alia judgment of 21 January 2010 in Case C-462/08, Ümit Bekleyen, and judgment of 4 February 2010 in Case C-14/09, Genc. 60   Council Doc. 6418/03, p. 8. 59

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supports this assumption as it reveals that Article 11(2) applies to a LTR residing in another Member State based on Chapter III of the Directive in a situation where the LTR concerned has only stayed there for a short period of time/ not yet obtained long-term resident status in that Member State. Thus, only in such cases does it make sense to say that the ‘registered or usual place of residence’ of the LTR is not within the Member State concerned. This interpretation weakens LTRs’ right to freedom of movement considerably as the second Member State essentially is allowed to deny LTRs the right to enjoy these significant rights on equal footing with nationals. Moreover, if this interpretation is correct, Article 11(2) would be better placed within Article 21 of Chapter III of the Directive, which deals with the issue of equality of treatment of longterm residents in a second Member State 3.3.  Education (Article 11(1)(b) and (c) ) The Commission’s proposal granted LTRs an absolute right of access to education, vocational training and study grants on the same terms as nationals.61 Futhermore, equal treatment was also secured by the proposal with regard to recognition of qualifications issued by a competent authority.62 These rights are all qualified in the final Directive: access to education and vocational training are subject to the above referred territorial limitation in Article 11(2) as well as to more specific limitations. LTRs’ right to study grants and recognition of qualifications has likewise been narrowed down. Access to Education and Vocational Training Article 11(1)(b) of the Directive stipulates that LTRs are to have access to education and vocational training on equal footing with nationals. This right is at first glance similar to that of Union citizens working in another Member State who are able to claim educational rights by virtue of Article 7(3) of Regulation 1612/68. This provision, which grants equal access to ‘vocational schools and retraining centres’, has been interpreted restrictively by the Court as only encompassing institutions that provide instruction linked to EC workers’ occupational activity.63 If this condition is not met, and the person in question no longer qualifies as a worker, cf. Article 7(3)(d) of the Citizens Directive, he/ she is still secured equal access as a result of his/her status as an EU student,

  Art. 12(b) of the proposal.   Art. 12(c) of the proposal. 63   Case C-39/86, Lair, [1988] ECR 3161, at para. 26 and Case C-197/86, Brown, [1988] ECR 3205, para. 12. 61 62

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cf. Article 18 EC (Art. 21 TFEU as amended) and Article 12 EC (Art. 18 TFEU),64 but the change of legal basis can inter alia influence on the right to obtain study grants on equal footing with nationals of the host Member State, cf. below. Article 11(1)(b) of the Directive is less generous than it might appear due to a number of limitations on the right to education and vocational training. Article 11 (3)(b) first and foremost allows the Member States to require proof that the given LTR posseses ‘appropriate language proficiency’. Such language requirements can arguably be viewed as pursuing a legitimate educational aim, which also serves the interests of LTRs. However, if the condition is not invoked by the Member States in strict conformity with the principle of proportionality, there is a severe risk that LTRs’ right to equality of treatment in respect of education will be eroded. In this context it is relevant to remember that the Member States by virtue of Article 5(2) of the Directive are entitled to condition the acquisition of long-term resident status on TCNs complying with ‘integration conditions’. Evidence of language proficiency undisputedly falls within this category; hence it is – as cogently pointed out by the French delegation during the Council negotiations65 – not entirely obvious why a Member State, which has in fact invoked Article 5(2) to impose language require­ments on LTRs, should also be allowed to demand such proof as regards access to education. Article 11(3)(b) further dictates that LTRs’ right of equal access to universities may be subject to the fulfilment of ‘specific educational prerequisites’. This restriction was inserted during the final deliberations on the Directive as a compromise primarily to accommodate Germany and Austria who had persistently insisted on maintaining even stricter rules in this area.66 ‘Specific educational prerequisites’ is, like ‘integration measures’, a vague and ambiguous  concept, which in principle is capable of embracing numerous national requirements. Nevertheless, it is doubtful whether the German ambition expressed in the Council to discriminate against LTRs in respect of university tuition fees is covered by Article 11(3)(b), given that equality of treatment in respect of access to education – including access to universities – is the main rule, cf. Article 11(1)(b).67 After all, it is reasonable to assume that such extensive derogation would be explicitly mentioned in the provision.

 Cf. inter alia Case C-293/83, Gravier, [1985] ECR 593 and the recent judgment of 13 April 2010 in Case C-73/08, Nicolas Bressol. 65   Council Doc. 6602/03, p. 17. 66   Council Docs. 9889/03, p. 17, and 9754/03, p. 17. 67   Ibid. 64

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The mere existence of the two limitations set forth in Article 11(3)(b) of the Directive might not be in conflict with the Tampere near-equality principle even though Community law does not contain similar restrictions in respect of EC workers. Both of the limitations are on their face legitimate, but it is relevant to remember that their personal scope of application is TCNs who have already lived in the Member State concerned for more than five years. In that context the limitations certainly seem less legitimate. Both provisions are phrased in vague terms and grant a significant amount of discretion to the Member States compared to the EC free movement of worker rules. It is therefore difficult to maintain that the Directive provides for near-equality in respect of education. This conclusion is arguably most obvious as regards access to universities considering that near-equality is a flexible concept and that the language requirement, provided that it is interpreted strictly, can be viewed as pursuing a legitimate aim. Study Grants The Commission suggested to grant LTRs access to study grants on equal terms with nationals, but Article 11(1)(b) only assigns such a right to LTRs ‘in accordance with national law’. The legal consequences of this amendment are not clear, and the travaux préparatoires, again, offer little help. On its face the term ‘in accordance with national law’ can be construed in two – very different – ways: either (1) it constitutes a complete derogation from the principle of equal treatment in this area as it is up to each Member State to define to which extent LTRs are to enjoy equality in respect of study grants, or it (2) merely implies that LTRs are entitled to access to the same study grants as nationals of the Member State concerned. Several arguments for and against both (1) and (2) can be put forward: if the Council meant to derogate entirely from the general rule of equal treatment in this area, it would have been more appropriate to specifically state so under Article 11(2)-(4). Moreover, recital 15 of the preamble specifies that study grants in the field of vocational training do not cover measures financed under social assistance schemes. The fact that the Council found it necessary to include this recital indicates that the Member States do not have an unlimited possibility of eroding LTRs’ right to equal treatment in this area. On the other hand, it has already been revealed that the Directive is suffering from several structural weaknesses68 and that one shall be careful to draw any conclusions based on logic. Moreover, when the approach generally adopted by the Directive is taken into account, it seems

  E.g. the additional condition listed in Article 7(1) instead of in Article 5 and the territorial limitation placed in Article 11(2) instead of in Chapter III.

68

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more likely that the Member States would agree on a broad derogation rather than merely list something as (2) which is actually superfluous considering that Article 11(1)(b) explicitly stresses that equality of treatment between LTRs and nationals is the main rule. If interpretation (1) is correct, which appears most likely, the legal effects of the amendment are significant: rather than being rights-based, LTRs’ right to study grants is entirely discretion-based. One possible restriction on this discretion does however exist: given that LTRs in principle are secured equal access to education and vocational training, it is reasonable to argue that they are also secured equal access to study grants in cases where those actually constitute financial support from the Government to tuition fees.69 All in all, the legal protection offered by the Directive to LTRs in respect of study grants is poor and in contrast to the one enjoyed by EC workers who, on basis of the social advantages provision enshrined in Article 7(2) of Regulation 1612/68, are entitled to study grants on an equal footing with nationals.70 Recognition of Qualifications Article 11(1)(c) grants LTRs the right to enjoy equal treatment with nationals as regards ‘recognition of professional diplomas, certificates and other qualification in accordance with the relevant national procedures’. This provision is virtually identical to the one proposed by the Commission.71 It emerges from the explanatory memorandum that the Commission intended for LTRs to ‘have the same rights to recognition of their qualifications as citizens of the Union’, which the Commission took to imply ‘that the host Member States shall take qualifications acquired outside the EU into account’.72 However, both the Com­ mis­sion’s proposal and Article 11(1)(c) of the final Directive oblige the Mem­ ber States only to secure equality of treatment with nationals as opposed to EU nationals exercising their freedom of movement. Arguably, both of these   This interpretation is inspired by the legal position of EC students, cf. Case C-197/86 Brown, n. 64 above. 70   This right exists for Union workers even though the given educational institution is not encompassed by Article 7(3) of Regulation 1612/68 provided that 1) there is some continuity between the previous work and the purpose of the studies in question or 2) the person in question has become involuntarily unemployed, cf. Case C-39/86, Lair, n. 74 above, paras. 37 and 39, and Case C-413/01, Ninni-Orasche, [2003] ECR I-13187, para. 35. Moreover, the Court has established that citizens of the Union lawfully resident in another Member State have the same rights as nationals as regards study grants if the Union citizen has a genuine link to that Member State, cf. Case C-184/99, Grzelczyk, [2001] I-6193, Case C-209/03, Bidar, [2005] I-2119 and Case C-158/07, Förster, [2008] I-8507. 71   Cf. Article 12(c) of the proposal. 72   Explanatory memorandum to the proposal, p. 11. 69

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categories of persons are EU citizens, but the legal position facing them with regard to recognition of qualifications is very different. Thus, the legal position of nationals is governed by the national law of each Member State whereas that of EC workers is conferred by Treaty provisions as well as numerous general and sectoral directives.73 The Court has determined, despite the main rule being that nationals cannot invoke Community law against their own Member State, that the Member States are required to recognize qualifications which a national has obtained in another Member State.74 This case law has first and foremost been developed on the basis of the internal market provisions in Article 39 EC and Article 43 EC that are not applicable to TCNs. Nevertheless, the effect of Article 11(1)(c) of the Directive is presumably that LTRs are also secured recognition of qualifications acquired in another Member State. This is only a small comfort for LTRs given that they primarily have obtained their qualifications in a third country and that the Member States are not, as they (to a certain extent) are with regard to Community free-movers,75 required by any EC measure to recognize such qualifications. It therefore appears that the insertion of ‘nationals’ instead of ‘EU freemovers’ is caused by a misunderstanding as its outcome contradicts the Com­ mission’s intention. Unfortunately, the legal effect of this misunderstanding is that it cannot reasonably be concluded that near-equality between LTRs and EC workers has been achieved by the Directive in this area. 3.4.  Social Benefits (Article 11(1)(d) and (e) ) The Commission proposed that LTRs are to enjoy an absolute right of equality of treatment with nationals as regards social benefits – encompassing social protection, social security, health care, social assistance and social and tax advantages.76 The legal status offered to LTRs by the Commission in this respect thus resembled the one held by EC workers exercising their right to freedom of movement on the basis of Regulation 1408/71 complemented by

  Craig and De Burca, n. 35 above, pp. 772–782. Directive 2005/36/EC (OJ 2005 L255/22) on the recognition of professional qualifications consolidates and modernises the general and sectoral directives in one text. 74   Case C-19/92, Kraus, [1993] ECR I-1663. 75   Cf. Case C-238/98, Hocsman, [2000] ECR I-6623, and Craig and De Burca, n. 37 above, p. 780–781, where the authors conclude that this judgment, in all probabilities, implies that the Member States are obliged to consider all qualifications, whether obtained within the EU or not. 76   Article 12(1)(d)–(f) of the proposal. 73

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Article 7(2) of Regulation 1612/68.77 The adoption of Regulation 859/0378 in May 2003 extended the scope of Regulation 1408/71 to TCNs moving within the Community and thus inter alia ensured LTRs residing in a second Member State based on Chapter III of the Long-term Residents Directive a genuine right of equal treatment with nationals in relation to the branches of social security schemes listed in Article 4 of Regulation 1408/71.79 This amendment gave effect to Article 34(2) of the Charter80 and signalled a commitment to raising the standards of living of TCNs.81 Article 11(1)(d) of the Directive which concerns LTRs’ social rights in the host Member State does not reflect the same social commitment even though Article 34(1) of the Charter also envisages social progress in this area. Article 11(1)(d) of the Directive professes equality of treatment as regards ‘social security, social assistance and social protection as defined by national law’, and 11(1)(e) extends this principle to tax advantages. The Directive, unlike the proposal, does not include social advantages in its listing. The legal effects of this omission with regard to integration of LTRs are not to be underestimated – especially not considering that the Commission’s intention was for this term to be understood in accordance with Article 7(2) of Regulation 1612/68 and the jurisprudence hereon.82 The Court interprets Article 7(2)   EC workers are, by virtue of Article 4 of Reg. 1408/71 and Article 7(2) of Reg. 1612/68, secured access to essentially all social benefits granted to national workers – including those not linked to employment – provided that the benefit can encourage mobility. Case C-207/78, Even, [1979] ECR 2019, and Craig and De Burca, n. 35 above, p. 738. Equality of treatment in relation to health care is implicitly secured by Title III of Reg. 1408/71. Reg. 1408/71 has since 1 May 2010 been replaced by Reg. 883/2004 on the coordination of social security systems (OJ 2004 L166/1). 78   OJ 2005 L124. The entry into force of Reg. 883/2004 entailed that Reg. 859/03 was repealed. The latter has now been replaced by Reg. 1231/2010 of 24 November 2010 (OJ 2010 L344/1) which extends the scope of Reg. 883/2004 to nationals of third countries who are not already covered by this regulation solely on ground of their nationality. Pursuant to this regulation the legal position of LTRs is essentially as that previously conferred by Reg. 859/03 and described in this article. It is beyond this article to examine these new rules further. 79   Article 3 of Reg. 883/2004 corresponds to Article 4 of Reg. 1408/71, but is more comprehensive in scope as more benefits are covered, for an overview see http://europa.eu/legislation _summaries/employment_and_social_policy/social_protection/c10521_en.htm. 80   Article 34(2) of the Charter reads: ‘Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices.’ 81   Notably, this amendment precludes the Member States from invoking Article 11(2) of the Directive to restrict LTRs’ right to enjoy any of the social security benefits encompassed by Article 4 of Reg. 1408/71 (Article 3 of Reg. 883/2004) insofar as these are granted to nationals. 82   Explanatory memorandum to the proposal, p. 19. 77

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of Regulation 1612/68 very liberally as guaranteeing EC workers equality of treat­ment in respect of essentially all social advantages available to national workers.83 If the Council had accepted that the Directive was to offer LTRs the same extent of equality, it would have taken a significant step towards realising the Tampere goals as well as the Union’s visions for social cohesion. By failing to do so, the Council instead signals that economic considerations carry greater weight. LTRs’ right of equal access to social benefits is further dismantled by the optional derogation clause set forth in Article 11(3) which stipulates that ‘Member States may limit equal treatment in respect of social assistance and social protection to core benefits’. Recital 13 of the preamble provides the lower limit for this erosion in that it dictates that LTRs are at least to be secured ‘minimum income support, assistance in case of illness, pregnancy, parental assistance and long-term care’. Social security is, as it appears, not affected by the limitation of Article 11(3), which could occasion one to assume that LTRs are secured access to such benefits on equal footing with nationals.84 This is however far from certain given that Article 11(1)(d) of the Directive leaves it to the Member States to define social security whereas Article 4 of Regulation 1408/71 (Art. 3 of Regulation 883/2004) specifically lists the ranges of benefits covered by this concept. Consequently, equality of treatment is only required by the Directive in respect of social security if the national legislation defines this concept as having an independent meaning from social assistance and social protection. Considering the general attitude expressed in the Council, the predictable effect of Article 11(4) is that equality of treatment in respect of social benefits will end up as being nothing more than an illusion. One could therefore argue that it would be more appropriate if the Directive, instead of professing equality in this area, simply listed which social benefits the Member States are obliged to grant to LTRs. Consequently, the legal status of LTRs in this area is not even close to being aligned to that of EC workers. Several human rights instruments set higher standards than the Directive, but it is not possible to go into detail with all of them. Note can be made of Recommendation Rec(2000) of the Council of Europe Committee of Ministers concerning the security of residence of long-term migrants, which ­recommends (para. 1(c) ) that long-term resident immigrants are to enjoy an unconditional right of equality of treatment with nationals in respect of social   Cf. inter alia case C-157/84, Frascogna, [1985] 1739, and Craig and De Burca, n. 35 above, p. 736. 84   During the negotiations in the Council the Commission persistently advocated in favour of securing LTRs a level of protection corresponding to that of Regulation 1408/71. Cf. Council Doc. 8213/03, p. 17. 83

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security and assistance as well as with regard to all forms of health care. The latter aspect is particularly interesting since the Council opted entirely against ensuring LTRs a right to health care.85 Most interesting in this context is perhaps the case law from the European Court of Human Rights (ECtHR) in cases concerning social security benefits. In the Stec case86 from 2005 the ECtHR held that both contributory and non-contributory social security benefits paid by Member States are covered by Article 1 of Protocol 1 ECHR and thus subject to the non-discrimination clause in Article 14 ECHR which notably encompasses a prohibition of discrimination based on nationality.87 Provided that the ECtHR adopts a bolder approach towards the European Union system than it did in the 1991 Moustaquim case,88 this case law can potentially have great impact on the EU Member States’ possibility of invoking Article 11(4) of the Directive. Finally, workers of Turkish, Moroccan, Tunisian and Algerian nationality all benefit from more favourable social security rights than those provided by the Directive. The agreements concluded between the Community and these countries grant the beneficiaries equal treatment with nationals as regards social security – which concept the Court has interpreted in light of Regulation 1408/71.89 The Court has furthermore determined that the relevant provisions in these agreements are directly applicable.90 3.5.  Other Areas of Life (Article 11(1)(f)-(h) ) Article 11(1)(f)-(h) list the remaining areas in which LTRs are to enjoy equal treatment with nationals. These three provisions are not as controversial as the   Article 11(1)(d) compared to Article 12(1)(d) of the proposal.   (Apps. Nos. 67531/01 and 65900/01) admissibility decision of 5 September 2005. This decision was thus delivered after the adoption of the Directive, however it clarified and developed upon case law existing at the time of the adoption of the Directive, cf. inter alia Gaygusuz v. Austria (App. No. 17371/90), judgment of 16 September 1996, (1997) 23 EHRR 364, and Poirrez v. France (App. No. 40892/98), judgment of 1 September 2003, (2003) 40 EHRR 34. 87   Article 1 of Protocol 1 ECHR does not create a right to acquire social security benefits. But those benefits schemes that are provided by a Member State must be operated in accordance with Article 14 ECHR, cf. para. 54. 88   Judgment of 18 February 1991, Series A No.103 (1991) 13 EHRR 802. The ECtHR accepted preferential treatment given to nationals of the EU Member States as being justifiable considering that these States belong ‘to a special legal order’ (para. 49). Cf. also C. v. Belgium (App. No. 21794/93), judgment of 7 August 1996, (1996) ECHR 28, para. 38. 89  Decision 3/80 of the Turkish Association Council incorporates the main provisions of Regulation 1408/71. 90   E.g. Case C-277/94, Taflan-Met, [1996] ECR I-4085, Case C-18/90, Kziber, [1991] ECR 199 and Case C-103/94, Krid, [1995] ECR I-719. 85 86

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provisions examined above – it can even be argued that the inclusion of the right to freedom of association and the right to free access to the territory of the Member States concerned (Article 11(1)(g) and (h) ) is superfluous given that these are universal rights found in both international and regional human rights treaties and applicable to all regardless of nationality.91 These provisions are therefore not examined separately. It is relevant to mention, though, that Article 11(1)(f) accords LTRs a legal status in respect of housing rights which is nowhere near as favourable as the one enjoyed by EC workers: Article 9 of Regulation 1612/68 maintains that EC workers are to benefit from ‘all the rights and benefits accorded to national workers in matters of housing’ while Article 11(1)(f) of the Directive merely grants LTRs equal treatment as regards ‘procedures for obtaining housing’. 4. Conclusion One can argue that LTRs are the least controversial group of TCNs from the point of view of the Member States: they have already been admitted to the territory of a Member State and have legally resided and worked there for a minimum of five years. In other words, LTRs are, at least to some extent, already integrated into a Member State – by choice of that Member State – and no immigration problems exist as regards their admission etc. For this reason,  LTRs are the group of TCNs in respect of which the differentiation between EU nationals and TCNs is the least well founded and thus the most obvious choice for a group of TCNs who are to enjoy equal treatment with EU nationals. Considerations like these have presumably motivated the European heads of government when they agreed on the Tampere objective of near-equality. The examination conducted in this article reveals that political ambitions and political reality can be two quite different things. With the Long-term Residents Directive the Member States were given the opportunity to implement the near-equality principle. Article 11 is more than any other provision of the Directive at the core of the Tampere objectives, but unfortunately it accords LTRs an absolute right of equal treatment with nationals in very few areas of life. The majority of the rights listed in Article 11 have been qualified and the restrictions which the Member States ‘may’ introduce by virtue of Article 11(2)(3) and (4) are not only considerable and discriminating, but also phrased in such broad and vague terms that the Member States are left   See ILPA, ILPA response to proposed EC Directive on the status of third country nationals longterm residents, 2003, p. 6.

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with a significant opportunity of eroding LTRs’ right to enjoy equality of treatment.92 Much is of course dependent on how the Member States choose to implement these optional derogation clauses and on how restrictively the Court can/will approach the Directive once the interpretative questions reach it. Nevertheless, the overall standard of Article 11 is, from the perspective of LTRs, low. In fact, in respect of the majority of the areas listed in Article 11 it can be concluded that the legal status assigned to LTRs differs from that enjoyed by EC workers working in another Member State to such an extent that reflections on the exact meaning of near-equality are rendered superfluous. The limitations on the right to employment and the right to social benefits – indisputably two of the most essential rights of migrant workers – are illustrative in this respect. Moreover, the minimum standard of Article 11 is so low that no uniform EC long-term resident status has been secured as groups of TCNs can invoke more favourable rights in several areas based on international agreements. Furthermore, various human rights instruments set their level of protection higher than that of the Directive. All in all is it fair to conclude that Groenendijk’s prediction has turned out to be correct.93 By failing to grant LTRs the foundation necessary for their full integration into the Community – i.e. the right to equal treatment with nationals – the Council signals that the Member States still consider TCNs, even after they have resided and worked legally in a Member State for more than five years and fulfilled the numerous conditions laid down in the Directive, to be second class citizens. 5.  Developments since 2005 The Directive has not been amended in any substance since its adoption. How­ ever, in June 2007 the Commission proposed an amendment that extends the scope of the Directive to refugees and beneficiaries of international protection.94

  Article 11’s use of optional derogation clauses is characteristic for the so-called ‘new approach’ introduced by the Commission in its 2000 Communication on a Community Immigration Policy, COM (2001) 757 final. This approach has affected the final wording and standard of the majority of the Title IV measures. 93   Cf. section 2.3. 94   COM (2007) 298 final. This proposal seeks to give effect to a Joint Statement by the Council and the Commission of 8 May 2003 in which the gap left open by the Directive was acknowledged. 92

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This proposal was subsequently discussed by the Council which ultimately failed to reach an agreement due to opposition from one Member State in November 2008.95 After the entry into force of the Lisbon Treaty with its new rules on decision procedure and qualified majority vote, cf. Article 79 2(a) and (b) TFEU, the proposal has been revived, and an informal agreement between the Council and the Parliament on a final text to be officially adopted in early 2011 has presumably been reached.96 Since 2005, focus has naturally shifted from the EU decision-making process to the national implementation of the Directive. The deadline for the national transposition was 23 January 2006, and at present the Directive has been implemented by all Member States.97 The important question still remaining is the quality and conformity of these national measures. So far, the Court has not been presented with any case dealing with the application/interpretation of the substantive provisions of the Directive.98 Whereas the lack of preliminary referrals by national courts should be seen in light of the pre-Lisbon limitations on the Court’s competence, cf. ex Article 68(1) EC and section 2.3 above, the Commission’s lack of action is most likely due to it awaiting those studies that shall form the basis of its report to the European Parliament and the Council on the application of the Directive, cf. Article 24 hereof. The deadline of this report is January 2011.99 This report will therefore constitute an important milestone as it will provide both a first overview of the implementation of the Directive and an identification of problematic issues. It is reasonable to expect conclusions much like those found in the report recently published by the Commission on the Quali­ fication Directive100 as the general approach and structure of this directive is very similar to that of the Long-term Residents Directive. In the report on the Qualification Directive the Commission inter alia concludes that ‘important   Council Doc. 16325/1/08 Rev 1, p. 22.   Council Doc. 16097/10, For an overview and analysis of the agreed text see S. Peer, Extending EU long-term resident status to refugees and persons with subsidiary protection status, Statewatch Analysis No. 114 of December 2010, available at http://www.statewatch.org/ analyses/no-114-ltr.pdf.  97   Except the United Kingdom, Ireland and Denmark, cf. n. 1 above.  98   The Court has however delivered judgments in three cases concerning Member States’ failure to transpose the Directive within the prescribed period, cf. Case C-37/07, Commission v. Luxemburg, Case C-59/07, Commission v. Spain and Case C-5/07, Commission v. Portugal.  99  The report is mentioned in the Commission’s Action Plan Implementing the Stockholm Programme (COM (2010) 171 final), p. 51, with the deadline set in 2011. On 28 February 2011, the deadline of this article, the report had not yet been published. 100   COM (2010) 314 final on the application of Council Directive 2004/83/EC of 29 April 2004 (OJ 2004 L304/12).  95  96

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disparities’101 subsist among the Member States in the grating of pro­tection, which partly is due to the ‘vagueness and ambiguity of several concepts’.102 In order to remedy the deficiencies identified, the Commission has put forward a proposal to recast the Qualification Directive.103 The Commis­sion has the same possibility in respect of the Long-term Residents Directive as the January 2011 deadline also applies to proposals by the Commission on necessary amendments hereto – in particular in relation to Articles 4, 5, 9, 11 and Chapter III, cf. Article 24 (i.e. the most controversial provisions of the Directive). The conclusions of the report will presumably also serve as the basis for the Commission to challenge Member States’ implementation of the Directive before the Court, which in turn may lead to a revelation of the Court’s interpretative approach to the Directive – a development of potentially great importance to the legal position of long-term residents, cf. section 2.3 above. In this respect it is noteworthy that the Court’s case law on other Title V TFEU measures sheds light on the overall approach of the Court in this area. Particularly interesting is the recent judgment in Chakroun104 concerning a provision of the Family Reunification Directive almost identical to Article 5(1)(a) of the Long-term Residents Directive.105 Both povisions grant a considerable amount of leeway to the Member States to condition the attainment of a right on the relevant TCN having ‘stable and regular resources’. In the already widely-known para. 43 of Chakroun the Court, emphasising that family reunification is the general rule, underlined the importance of interpreting the faculty provided for by Article 7(1)(c) of the Family Reunification Directive strictly and the corresponding obligation on the Member States not to use their discretion in a manner which undermines the objective and effectiveness of the Directive. The Court applied these principles stringently in Chakroun as it refused to accept disproportionate and additional conditions on the right to family reunification introduced by the Dutch authorities. When doing so the Court demonstrated a willingness to interpret in line with the principles of free movement of EU citizens.106 It is beyond the scope of this article to conduct an in-depth analysis of Chakroun, but, in short, at least three arguments prompt the conclusion that   P. 15.   Ibid. 103   Com (2009) 551. 104   Case C-578/08, Chakroun v Minister van Buitenlandse Zaken, judgment of 4 March 2010. 105   Art. 5(1)(a) is discussed in section 2.2 above. 106   In para. 46 the Court referred to Case C-291-05, Eind, [2007] ECR I-10719, and in para. 64 to Case C-127/08, Metock, [2008] ECR-6241. 101 102

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the Court in the future will approach the Long-term Residents Directive in a similar manner: First, the general nature of the key grounds of Chakroun. Second, the obvious similarities between the Family Reunification Directive and the Long-term Residents Directive with regard to scope (i.e. legal migrants already residing in a Member State), structure and wording of the provisions. Third, the fact that the Court rests its interpretation on well-known principles of EU law (the principles of effectiveness, proportionality and respect for fundamental rights) and substantiates its arguments with references to its case law on freedom of movement of EU citizens. Admittedly, the two cases referred to concern family reunification (the sponsor in both cases being a EU national), however, this aspect does not appear to have been decisive for the Court as the important para. 43 of Chakroun does not contain any such references. If this understanding of Chakroun proves correct, the Court renders many of the concerns outlined in section 2.3 above superfluous and, at the same time, improves the prospects of an enhancement of the legal status of TCNs in EU law significantly. In conclusion, even though five years have passed, the major developments regarding the Directive are yet to take place, and the most important questions still remain unanswered. The fundamental distinction between LTRs and nationals of the Member States, to which the Directive contributes, continues to exist. In fact, this distinction has grown as the Court in recent years – in contrast to its withdrawn role under ex Title IV EC – has progressively developed its case law on Union citizenship and inferred an increasing number of substantive rights on Union citizens exercising their freedom of movement without engaging in gainful activities in another Member State.

Love Thy Neighbour: Family Reunification and the Rights of Insiders Betty de Hart 1. Introduction The applicants are not the husbands but the wives, and they are complaining not of being refused leave to enter or remain in the United Kingdom but, as persons lawfully settled in that country, of being deprived (…) or threatened with deprivation (…) of the society of their spouses there.1

In this statement in Abdulaziz, the European Court of Human Rights expressly acknowledged that family reunification is about the interests of insiders (citizens and permanent residents) to be joined by their migrant partners, and not outsiders (migrant partners) who want to be admitted. In this article, I adopt the Court’s perspective that family reunification is about insiders. I look at the extent and the way in which the Court in Article 8 ECHR cases (the right to family life) takes the interests of insiders into account in the balancing of the state’s interests against the individual’s interests. I use three moral principles formulated by Joseph Carens for family reunification policies in liberal democratic states as an analysing tool for the evaluation of the Court’s case law: 1.  Family reunification is about the moral claims of insiders, not outsiders. 2.  In addition to their interest in family life, people also have a deep and vital interest in being able to continue living in a society where they have settled and sunk roots. 3.  No one should be forced by the state to choose between home and family.2 Although it is common to say that states are morally free to exclude whomever they choose, liberal democratic states recognise moral obligations to admit non-citizens who are the immediate family members of citizens and residents. According to Carens, any immigration policy should at least include these three moral principles.3   Abdulaziz, 28 May 1985, 9214/80, 9473/81, 9474/81.  J.H. Carens, ‘Who Should Get in? The Ethics of Immigration Admissions’, Ethics and International Affairs, 2003, vol. 17, nr. 1, p. 95–110. 3   Carens 2003, p. 95–96. 1 2

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To what extent is the Court guided, if at all, by these principles? This leads to the following questions to be addressed in this contribution: a.  When and how are the interests of the insider family member taken into account? b. How are ties of the insider in the country of citizenship or residence evaluated? c.  How is the choice between home and family evaluated? Each of these questions will be addressed by a discussion of first admission cases and expulsion cases involving an insider spouse. Not coincidentally, all but one cases involve insider women with a migrant spouse. In 1990, a review of all the cases dealt with by the Court demonstrated that it was an insider woman’s foreign partner who was refused admittance or residence and the woman who was expected to follow her partner to his country of origin.4 This pattern does not seem to have changed much since. Most Article 8 cases before the Court are about insider women with a migrant spouse. My hypothesis is that the way the interests of insider spouses are evaluated by the Court is determined by underlying notions about gender and ethnicity. I will analyse the Court’s consideration of the insider position with special reference to such notions. 2.  First Admittance Cases Abdulaziz The female applicants in Abdulaziz were affected by the 1980 British Immigration Rules, that had introduced stricter conditions for the grant of leave to a husband seeking to join a wife settled in Britain, than for the wives of settled men. Mrs Abdulaziz was from Malawi and her Portuguese husband was refused admittance because she was not a British citizen. Mr Abdulaziz remained and worked in the UK without leave and they had a son. After Mrs Abdulaziz acquired British nationality, the couple claimed that the wife could not be expected to follow her husband to Portugal, because of her family ties in Britain, because she did not speak the language and her sick father needed her company, and finally because of her own health problems caused by the residence problems of her husband.   A.H.J. Swart, ‘Artikel 8 van het Europees verdrag tot bescherming van de rechten van de mens’, in: Handelingen Nederlandse Juristen Vereniging 120(1), Zwolle: Tjeenk Willink 1990, p. 188.

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Mrs Cabales’ Philippine husband’s entry clearance for permanent settlement was refused even after Mrs Cabales obtained British citizenship. Mrs Cabales claimed she could not return to the Philippines, because she was too old, her qualifications as a nurse were not recognised there, and working in the UK enabled her to provide for her parents. Mrs Balkandali, a British citizen born in Egypt, lived together and had a son with a Turkish citizen. After the husband had been advised to leave the country, they married and he was granted permanent residence. Mrs Balkandali said that there would have been real obstacles to her going to Turkey, because of her strong ties to Britain. As an educated woman and the mother of an illegitimate child, she would be treated as a social outcast in Turkey. The women claimed violation of Article 8 in connection gender and racial discrimination (Article 14). They also contended that respect for family life encompassed the right to establish one’s home in the state of one’s nationality or lawful residence, so that one was not faced with the dilemma either of moving abroad or being separated from one’s spouse. Hence, the applicants referred specifically to the insider’s right not to choose between home and family, Caren’s third principle. The Court concluded that the right to found a family encompassed the right to live together. The question of choice of residence went to the degree of respect for family life. Article 8 might entail a positive obligation to respect family life, but the contracting states had a wide margin of appreciation, because the case concerned not only family life, but also immigration, which was a matter of state sovereignty. The extent of the positive obligation to admit relatives of settled immigrants depended on the particular circumstances of the persons involved. Here, it was relevant that the women were not immigrants who already had a family when they were admitted, but immigrants who had founded a family after they had become settled as singles. There was no positive obligation to respect the choice of residence by married couples. This means that migrants who come as married outsiders to the country of residence have a larger claim to family reunification than settled migrants or citizens who are already insiders and marry a foreign national. In the latter case, the balance tip sooner in the direction of the interests of the state. The Court also pointed out that, at the time of the marriage, the women knew that the immigrations status of their husbands was precarious. By now, it has become established case law that when family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would, from the outset, be precarious, only in the most exceptional circumstances would removal of the family member constitute a violation of Article 8. But the Court went further. Mrs Cabales should have known, since

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she had never cohabited with her husband, that he required permission to remain that would not be granted under the existing rules. The Court concluded that there had been no violation of Article 8. Here, the permanent residence or citizenship of the insider women did not weigh up to the fact that their husbands had not been lawfully admitted. Even if they had broken no rule at all, as in the case of Mrs Cabales, the insider had to reckon with the fact that the state might refuse admittance. The Court denied any right to the insider to have a family life with a partner from abroad. This way of reasoning transforms the actions of the state (refusal of admittance) into the consequence of choice by the insider spouses. A positive obligation could, according to the Court, exist only if there were obstacles to establishing family life ‘in their own or their husbands’ home countries’ or if there were special reasons why that could not be expected of them. Note that the Court spoke of their ‘own home countries’. Apparently, in spite of the women’s permanent residence or British citizenship, the UK was still not considered their home country. Although the three women claimed that there were obstacles to joining their husbands in their countries of origin, the Court did not discuss these claims, merely stating that no such obstacles had been shown. Mrs Balkandali claimed discrimination on the grounds of birth, because, under the 1980 rules, only citizen women settled in the UK and who were born there or had a parent born there could have their non-national husband admitted. The British government justified this distinction as the concern to avoid the hardship which women having close ties to the United Kingdom would encounter if they were obliged to move abroad in order to remain with  their husbands. The Court accepted this argument. Although Mrs Balkandali had formed close ties with the UK, there were persuasive social reasons for special treatment to those whose link with a country stemmed from birth within it. The Court did not explain what those persuasive social reasons were. In conclusion: although the Court affirmed that family reunification is about insiders, it did not attach much consequence to this principle. In fact, because it did not accept Britain as the women’s home country, it did not have to evaluate the women’s ties to Britain or the choice between home and family. The question of obstacles to joining their husbands was ignored. Finally, the Court accepted different treatment of different categories of insiders: those born in the country and others, regardless of citizenship. Hence, the Court accepted an implicit standard of ethnicity, which played an important role in later case law. As will be demonstrated later in this contribution, however, the Court requires even those born in the country to choose between home and family.

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The women won their case because the Court concluded that there had been discrimination based on sex. The Court considered that advancement of the equality of the sexes was a major goal within the Council of Europe and that the difference in treatment required very weighty reasons. The British government’s justification of limiting labour immigration, which required limiting male immigration, did not convince in this respect. However, the victory of the women was a sour one. The British government amended the discriminatory rules by taking away the rights that men had had for so long to be joined by their wives.5 Omoregie Many years later, Elisabeth, a Norwegian woman, born and bred in Norway, met Louis, a Nigerian asylum seeker. Louis was allowed to stay in Norway while his case was pending. When Louis’ asylum application was denied, the couple applied for residence based upon marriage. After this application was rejected, Louis remained in Norway, in spite of several expulsion orders. The request for family reunification was finally denied, because of Louis’ unlawful employment for nine months and the failure to comply with the order to leave the country. Re-entry was refused for a period of five years. The lower court found this expulsion for a five-year period disproportionate. It could result in to the dissolution of the family, since Elisabeth would have great difficulties adapting to life in Nigeria. The Norwegian High Court decided differently, because Louis had repeatedly infringed the immigration regulations. Louis’ links with Norway were considered to be ‘very limited’ and the links to Nigeria ‘particularly strong’. The High Court considered that it was not uncommon for a person whose expulsion had been decided to marry a Norwegian citizen and use this as an argument to have the expulsion order invalidated. The marriage between the applicants could not be decisive: ‘otherwise, it would leave open a practice which would completely undermine the authorities’ implementation of the Immigration Act’. Here, marriages of insiders with immigrants were explicitly framed as dangerous to state sovereignty. Implicitly, the High Court seemed to hint at bogus marriages. With regard to Elisabeth’s interests, the High Court considered that, at the time of the marriage, she must have known that Louis’ residence was uncertain. Moreover, she was used to living abroad, because she had lived in South Africa for several years. English was the official language in Nigeria and she

  J. Bhabha and S. Shutter, Women’s Movement, Women under Immigration, Nationality and Refugee Law, Stoke on Trent: Trentham Books 1994, p. 58.

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would not face insurmountable problems by settling there for a shorter or longer period ‘should she so wish’. After the High Court’s decision, a daughter, Selma, was born. When Selma was almost six months old, Louis was expelled and not allowed to re-enter Norway for five years. The couple maintained before the European Court that the expulsion of Louis would lead to the disruption of the family, since it would not be possible for Elisabeth and Selma to follow him. Elisabeth had studied in Norway and her education gave her no basis for employment in Nigeria. The cultural differences would cause adaptation problems for Elisabeth and the child. There was a high infant mortality rate, high crime rate and danger of kidnapping of a non-African child in Nigeria. The couple referred to the best interests of the child and maintained that they had had reasonable expectations that residence would be allowed, since they had married while Louis was lawfully resident, Elisabeth had stopped her study to work, and spouses of Norwegian citizens had a right to apply from Norway for family reunification. Referring to Rodrigues Da Silva Hoogkamer, they stated that Article 8 also applied in cases where there was no formal residence permit.6 The government argued that family life had been established and family reunification applied at a time when there had been no realistic expectations that residence would be allowed. Louis’ residence after this application had been merely tolerated and it had not been substantiated that there were insurmountable circumstances to establishing family life in Nigeria, since Elisabeth had lived in South Africa and Selma was of an adaptable age. The Court decided that the expulsion was an interference with the right to family life, since the marriage was genuine and there was a child born from the marriage. When the couple started their relationship, it must have been clear to them that the prospects of settling as a couple would be precarious. Since the marriage had been contracted when Louis was illegally in the country, removal would be a breach of Article 8 only in exceptional circumstances. Louis and Elisabeth, by confronting the Norwegian authorities with Louis’ presence in the country as a fait accompli, were not entitled to have any right of residence conferred upon him. The Court then turned to Louis’ interests. He had come to Norway when he was 22, his ties with Nigeria were particularly strong (university study, three brothers with whom he still had contact), and those with Norway weak, apart from the family bonds with Elisabeth and Selma. Selma was still of an adaptable age. Elisabeth would experience ‘some difficulties and inconvenience’, despite her stay in South Africa and her English language proficiency. Hence, there were no insurmountable obstacles to establish family life   Rodrigues Da Silva Hoogkamer, 31 January 2006, 50435/99.

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in Nigeria; otherwise, she and Selma could visit Louis for shorter periods. That Louis could not return to Norway for five years was justifiable, since it was an administrative sanction and re-entry could be applied for after two years. The Court ruled that a fair balance had been struck between the personal interests of the applicant and the public interests of ensuring an effective implementation of immigration control and that there had been no violation of Article 8. The case was held inadmissible. In a dissenting opinion, Judge Kovler stressed that the applicants could have expectations that the residence would be permitted. He also stressed that Louis had not committed a criminal, but merely an administrative offence, and that Elisabeth could hardly be expected to follow him; short visits by Louis to Norway were not realistic. Hence, family life would be seriously impaired. Although Carens’ first principle was upheld by allowing Elisabeth’s application before the Court and looking at her interests, the Court did not go into the question of whether Elisabeth and Selma should be allowed to remain in the country where they had sunk roots (second principle). Louis’ ties with Norway were taken into account, however ‘weak’ they might have been, but we learn next to nothing about Elisabeth and Selma’s ties in Norway: did Elisabeth have family there? Did Selma have contact with her grandparents? Did she go to child day care? What did it mean that Elisabeth worked and studied? Elisabeth and Selma’s Norwegian citizenship was not mentioned at all, or their birth and upbringing in Norway. What had they built as a life? What would Elisabeth have to give up if she followed her husband? Why were their settlement and roots not important? It was not only the Court that ignored such arguments; they were not put forward by the applicants. The couple merely explained why Elisabeth and Selma could not be expected to follow Louis to Nigeria, by ‘orientalising’ Nigeria as a culturally strange and dangerous foreign country, where a western/white woman could not live and western children were kidnapped. Looking at case law, such as Boultif, discussed below, this makes sense, but it did not work. Following the government’s arguments, the Court mentioned Elisabeth’s stay in South Africa, as if Africa was one country, and everything was the same. English as an official language made Nigeria less strange. The Court ignored the couple’s claims about health and safety problems, and only looked at the cultural arguments.7 Hence, the insider’s interests became a struggle over culture.  In Boultif, the couple put forward the argument that at the time it was dangerous for Mrs Boultif to live in Algeria, because of the Islamist attacks on western women. The Court ignored the argument. Boultif, 2 August 2001, 54273/00.

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So, why were Elisabeth’s ties to Norway not relevant? It could be that as a Norwegian woman, born and bred in Norway, her ties to that country were thought to be self-evident and in no need of further explanation. It is also possible, that ties in the home country are not a decisive factor in judging the proportionality of measures.8 On the other hand, sometimes the Court takes into account the life that insider family members have built in the country of residence. In Sen, a Turkish couple had established a life in the Netherlands and had children born there.9 The Court considered that the parents were facing the choice of giving up everything they had built in the Netherlands, or giving up the company of their daughter Sinem, whose residence they had applied for: the choice between home and family. Here, it was not a choice for which the parents were held responsible, it was a choice forced upon them by the state. Why was it relevant that the Sen couple had established a life in the Netherlands, while no consideration was given to Elisabeth’s ties? Of course, there are important differences between both cases. Sen was about admittance of a child, Omoregie about admittance of a spouse. The Sen couple had complied with immigration rules, the Omoregies had not. Most importantly, Sen was about family reunification, while Omoregie was about family formation. Again, this seems to give the already married outsider who has been admitted and becomes an insider a better claim than the insider who has met a foreign partner. Although the Court did not repeat the Norwegian High Court’s fear that the latter ‘would leave open a practice which would completely undermine the authorities’ implementation of the Immigration Act’, the way the Court dealt with the case suggests that it might share this fear. Useimov In Useimov, a Dutch woman, Ms van B, fell in love with her neighbour, Kazim, an asylum seeker from Macedonia.10 They met while the appeal against the rejection of Kazim’s asylum application was still pending. They lived together and had a daughter. After his appeal was rejected, Kazim applied for a residence permit on humanitarian grounds, based on the relationship with Ms van B and their daughter. Two days later, Ms van B informed the immigration authorities that their relationship had ended. The Dutch authorities rejected  A. Farahat, ‘The Exclusiveness of Inclusion: on the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants’, European Journal of Migration and Law, 2009, vol. 11, nr. 3, p. 253–269.  9   Sen, 21 December 2001, 31465/96. 10   Useimov, 11 April 2006, 61292/00.  8

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the request. First, Kazim’s fatherhood was doubted – he had not acknowledged the daughter because Ms van B’s father had opposed their relationship. It was not clear that he had family life with his daughter or with Ms van B. In the objection to this decision, Kazim stated that he saw his daughter at least once a week. Ms van B stated that Kazim was the father, that they had family activities once a week, although their relationship had ended. Because Kazim was not allowed to work, he could not contribute financially to his daughter’s upbringing, but he bought her presents. The Minister considered that, because there was no residence permit enabling family life to be taken away from him, there was no interference in Kazim’s family life, or a positive obligation for the state to grant a permit. The family life was further doubted: Kazim and Ms van B had never officially lived together, it was not substantiated that he saw his daughter once or twice a week, or that he had custody, or contributed financially to her upbringing. The conclusion was that Kazim’s family life with his daughter could also be lived from Macedonia. Shortly after, the family court established access arrangements, as agreed by the parents. The couple had a second child, a son, and Kazim recognised both children. While Ms van B worked four days a week, Kazim looked after the children; the other three days were spent together as a family. When Ms van B lost her job, an application for a residence permit based on the relationship stood no chance, because of the income requirement. Kazim complained that his right to family life had been infringed, and that it would be practically impossible to enjoy any kind of meaningful form of family life from Macedonia. The government rejected the complaint because Kazim’s stay had been illegal since the rejection of the first appeal before the birth of the first child. Kazim claimed that no action had been taken to expel him, he had social security, housing and health insurance, so that he had a justified expectation that he would be allowed to stay. The infringement upon his family life could not be justified solely by the argument that he had never had a permit to stay. Here, for the first time, the interests of the partner and children were put forward; they had ties with the Netherlands, no ties whatsoever with Macedonia, they did not speak the language and it was far from certain that they would be admitted. The European Court found the complaint ill founded. It first considered that there was family life, since Kazim had recognised the children and took an active part in their upbringing, even if he did not live with them. Since no residence permit had been withdrawn, the question was whether a positive obligation existed to grant residence. Kazim’s residence had been precarious  or even illegal for the last part of the five-year period. If, while a state allowed immigrants to await a decision, they formed relationships and created

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family life, this did not oblige states to allow residence based on that family life. By acknowledging that immigrants develop relationships, but not that insiders may develop relationships with neighbours who happen to be asylum seekers, the Court made it into a matter concerning outsiders, not insiders. Furthermore, the Court drew a parallel with the situation where a person, without complying with the regulations, confronts the state with his or her presence in the country. Hence, awaiting pending asylum proceedings was equated with illegal residence, again stressing the relevance of immigration control. The Court pointed out that since Kazim had grown up in Macedonia, and went to school there, he was supposed to still have links there. The Court did not make clear what these links consisted of. For Ms van B, no insurmountable obstacles existed to settling in Macedonia with the children, although there might be ‘some social hardship’ as a result. Should she choose not to follow, contact between Kazim and the children would not become impossible, in the light of the distance between both countries. The complaint was held inadmissible. The Court did not go into details of why there were no insurmountable obstacles for Ms van B to go to Macedonia. It is clear that her interests were a minor consideration to the Court. It was not her family life with Kazim that was at stake, only the family life between Kazim and the children, for which she could either choose to follow him to Macedonia, or not. She was the one who was expected to make the choice between social hardship in Macedonia and limiting the contact between Kazim and the children, even though it was not really clear what the state of their relationship was. Similar to Omoregie, it was left up to the insider woman, her ‘choice’ between home and family, to maintain family life by following the husband or partner, or not. In this way, and in compliance with the positive obligation, the Court constructed the government act of refusing admittance into an act by the insider woman. So, is it still true that it is only women who are expected to follow their husbands? Of course, not only men are refused admittance. In Konstatitinov, a Roma woman, who had been convicted for theft, submitted the claim that her husband was not able to work because of health problems, that his whole family lived in the Netherlands and that he only spoke Dutch and Roma and not Serbian, the country to which she would be evicted.11 The Court rejected the applicant’s claim that the husband would be refused admission in Serbia and pointed out that he had made no effort to find a job. No further considerations   Konstatinov, 26 April 2007, 16351/03.

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were made as to the question whether the husband could be expected to follow, or whether there were insurmountable obstacles. Does this mean that  men can never meet insurmountable circumstances and can always be expected to follow their wives? Or are men not expected to follow at all, so that it is not necessary to consider whether there are insurmountable obstacles? Another similarity is that in both Omoregie and Useimov the national authorities cast doubt on the seriousness of the relationship: in Omoregie by perceiving the marriage as a danger to immigration policies, in Useimov by doubting Kazim’s fatherhood. The Court, however, had confirmed that the marriage between Elisabeth and Louis was genuine and that Kazim had family life with his children. Still, it had put both relationships in the context of immigration control by equating pending asylum proceedings with illegal residence. Notably, in Rodrigues Da Silva Hoogkamer, the Court did not find illegal residence decisive. In this case, a Brazilian woman was an illegal resident and had worked illegally for years. The Court reiterated that persons, who, without complying with the regulations in force, confront the authorities with their presence in the country as a fait accompli, do not, in general, have any entitlement to expect that a right of residence will be conferred upon them. Nevertheless, the Court decided that the Dutch state was obliged to allow family life between the woman and her daughter. This case was different from cases where the person could not at any time reasonably expect to be able to continue family life, because lawful residence would have been possible during the years when the relationship with the Dutch father was still intact. The Court stated: In view of the far-reaching consequences which an expulsion would have on the responsibilities which the first applicant has as a mother, as well as on her family life with her young daughter, and taking into account that it is clearly in Rachel’s [the daughter, bdh] best interests for the first applicant to stay in the Netherlands, the Court considers that in the particular circumstances of the case the economic well-being of the country does not outweigh the applicant’s rights under Article 8, despite the fact that the first applicant was residing illegally in the Netherlands at the time of Rachel’s birth. Indeed, by attaching such paramount importance to this latter element, the authorities may be considered to have indulged in excessive formalism.12

Why was illegal residence relatively unimportant here, while building a relationship with an asylum-seeker was so much more problematic? Although the Dutch father in Rodrigues Da Silva Hoogkamer had played ‘a less prominent

  Rodrigues Da Silva Hoogkamer, 31 January 2006, 50435/99.

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role’, he had sole custody of the child. Expulsion of the Brazilian mother would have meant that she would have to give up the care and contact with her daughter. Since she would not be allowed to take her daughter with her, there was only one way to live up to her responsibilities as a mother: by staying in the Netherlands. I suggest that there are two possible explanations for the differences between these cases. First, responsibilities as a mother seem to be the keyword here. Apparently, a father’s presence is not vital or in the best interests of the children, even in the case of Kazim, who had taken care of the children four days a week for several years. Furthermore, responsibility as a mother means different things: in Rodrigues Da Silva Hoogkamer, the mother needed residence to be with her child. It is very likely that if the mother had had custody herself, she would not have been admitted: she could have upheld her responsibilities as a mother in Brazil. In the other cases, the mothers were citizens and thus could be with their children and be responsible mothers. It was up to them to decide whether they found the relationship between father and children so important that they ‘chose’ to follow the migrant partner to his home country. Considering the lack of insurmountable circumstances to follow, one might suggest that, as responsible mothers, they were expected to do so. Secondly, relationships between insider women and migrant men have traditionally been perceived as a more serious threat for immigration policies than relationships of insider men with migrant women, as was demonstrated in the government’s position in Abdulaziz.13 In this respect, it is telling that although the Dutch government stressed the illegal residence of the mother in Rodrigues Da Silva Hoogkamer, at no time did they question the seriousness of the relationship or the fatherhood of the Dutch father. Although the Court rejected explicit sex discrimination in immigration rules, it was not immune to gendered beliefs about the role of men and women. 3.  Expulsion Cases One might argue against the evaluation of the cases discussed so far, that they are first admission cases, in which the state has a large margin of appreciation. In expulsion cases, the balance struck between the interests of the state and the individual, would turn out sooner in favour of the interests of the individual.

  B. de Hart, ‘The Right to Domicile of Women with a Migrant Partner in European Immigration Law’, in: S. van Walsum and T. Spijkerboer, Women and Immigration Law. New variations on classical feminist themes, New York: Routledge Cavendish 2007, p. 142–162.

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Do cases of withdrawal of a residence permit lead to different conclusions? To what extent and how are insiders’ interests taken into account in those cases? The landmark case Boultif suggests that insider interests can be decisive.14 The Algerian national, Boultif, married his Swiss wife shortly after his arrival in Switzerland. The couple had no children. After three years, he was sentenced to two years’ imprisonment because of several criminal acts. He was released from prison early on grounds of good behaviour and found a job. The immigration authorities refused the renewal of his residence permit and, two years later, he was ordered to leave the country. The Swiss Federal Court found the refusal to renew the residence permit not in violation of Article 8 ECHR. The applicant had lived in Algeria most of his life and had not demonstrated particularly close ties to Switzerland. While it would not be easy for Mrs Boultif to follow him to Algeria, it was not completely impossible. She spoke French and had had telephone contact with her mother-in-law. Because Mrs Boultif had worked most of her life, she was not economically dependent on her husband. The couple could also establish their family life in Italy, where the applicant had lived lawfully before coming to Switzerland. The European Court saw the refusal to renew the residence permit as interference with Boultif ’s right to respect for family life. The Court subsequently set out to determine whether this refusal reflected a fair balance between the applicant’s right to respect for his family life and the state’s interests in preventing disorder and crime. The Court set out the following guiding principles: –  the nature and seriousness of the offence; –  the duration of the residence; –  the time elapsed since the offence had been committed; –  the nationalities of the parties concerned; –  the applicant’s family situation, such as the duration of the marriage and other factors; –  whether the spouse knew about the offence at the time when he or she entered the family relationship; –  whether there were children of the marriage and if so, their ages; –  the seriousness of the difficulties which the spouse was likely to encounter in the country to which he or she was expelled. Three of these guiding principles refer explicitly to the interests of the insider spouse: nationality, knowledge of the offence and difficulties in the country of   Boultif, 2 August 2001, 54273/00.

14

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origin of the migrant spouse. If the insider spouse had started the relationship with the applicant after the offence was committed, the interests of the insider spouse would not be taken into account at all, because the insider spouse had made the choice to start a relationship with a criminal. In Onur, the Court considered: Moreover, the applicant’s partner was aware of his criminal record and immigration history when they decided to marry and start a family. In particular, she was aware that in 2001 the Secretary of State had advised the applicant that he was considering deportation.15

In Andrews, the Court stated that the insider spouse, even if she did not know, she ‘ought to have been aware’ of the precarious immigration status of the husband at the date of the marriage; in the words of the British Immigration Appeal Tribunal: ask the obvious question.16 Although Mrs Boultif was not one of the complainants, her interests were considered relevant for the decision. Nevertheless, except for her Swiss citizenship, we learn little about Mrs Boultif ’s ties to Switzerland from the Court’s assessment. The Swiss Court stated that she had worked all her life. What her economic independence meant for her ties to Switzerland is not explicitly stated. Did her work connect her to Switzerland? Or did it imply that she could take care of herself and did not need to follow her husband to Algeria? We learn nothing about her family, education and private life. Was all this implied in her Swiss nationality or was it just not relevant? Only the insider’s ties with the country of origin of the migrant partner were taken into account. The Court looked at the difficulties that the spouse would meet in the applicant’s country of origin, although the mere fact of these difficulties could not prevent expulsion. Under what circumstances does the insider spouse not have to choose between home and family? The Court noted that Mrs Boultif could not be expected to follow her husband, because she had never lived in Algeria, had no other connections to that country, did not speak Arabic and did not know her family-in-law. Remarkably, the fact that Mrs Boultif spoke French, which functions as a second language in Algeria, was ignored, in contradiction to Elisabeth’s mastering English in Omoregie. Furthermore, it had not been established that the couple could reside lawfully in Italy. The Court considered that the applicant had been subject to a serious impediment to establish family life, since it was practically impossible for him to establish his family life outside Switzerland, while, on

  Onur, 17 February 2009, 27319/07. See also Kaya, 28 June 2007, 31753/02.   Andrews, 29 September 2009, 46263 (inadmissable).

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the other hand, at the moment of refusal of his continued stay, the applicant only presented a comparatively limited danger to public order. The Court was,  thus, of the opinion that the interference was not proportionate to the aim pursued. There had, accordingly, been a violation of Article 8 of the Convention. Mrs Boultif was basically in a similar situation to the women in Omoregie and Useimov, although the conclusion was very different. One difference was that Mr Boultif had been lawfully admitted. On the other hand, in Omoregie and Useimov, citizen children were involved, and the husbands had not committed any crimes. Can these different outcomes only be explained by the larger margin of appreciation in admittance cases, or are other issues at stake? In Boultif, the woman not only had the nationality of the country of residence, she was ‘ethnically’ Swiss. Would the same decision have been made if the insider spouse had been a second-generation woman, born in the country or naturalised at a later age? We have already seen that in Abdulaziz the Court found justifiable a distinction between citizens born in the country of residence and citizens who were later naturalized. In Yildiz, a Turkish man was expelled from Austria, because he had committed several thefts and traffic offences. The Court considered that although his wife was Turkish, she had been born in Austria. The Austrian authorities had failed to establish whether or not she could be expected to follow her husband to Turkey, in particular whether or not she spoke Turkish and had maintained any links, other than nationality, with that country.17 This seems to imply that there is no difference in the evaluation of the ties of a woman born in Austria of Turkish descent and nationality, and of a woman born in Austria, of Austrian descent and nationality. However, the way the ties are evaluated may very well lead to such differences. A closer look at the factors the Court found relevant, may clarify this. In Boultif, the Court mentioned that Mrs Boultif: –  had never lived in her husband’s country of origin; –  had no other ties to her husband’s country of origin; –  did not speak Arabic; –  did not know her family-in-law. Amrollahi, which involved an ‘ethnically’ Danish woman and children with an Iranian husband and father, added the factor: -  was not a Muslim.18   Yildiz, 31 October 2002, 37295/97.   Amrollahi, 11 July 2002, 56811/00.

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Here, the differences between the Swiss Mrs Boultif, and the Turkish Mrs Yildiz become evident. The Yildiz case does not indicate whether Mrs Yildiz spoke Turkish. However, she had visited Turkey several times, had lived there for a while and had left her child with relatives there. She had ties with both countries, which is more likely and more self-evident in the case of secondgeneration migrant women. The Court’s logic suggests that migrant women can more readily be expected to follow their husbands than native/white women. The Sezen case, however, seems to contradict this. This case concerned a second-generation woman of Kurdish-Turkish origin, the wife of a Turkish national expelled on grounds of public order. The Court considered that following the husband would mean a ‘radical upheaval’ for the wife and in particular for the children, who had ‘always lived in the Netherlands and its cultural and linguistic environment’.19 On the other hand, the Court declared inadmissible a case concerning a Moroccan father with a Dutch-Moroccan wife and children, explicitly considering that the wife ‘is of Moroccan origin and that she has both Netherlands and Moroccan nationality’.20 The Court found no indication of any practical obstacles for Mrs Boumlal and their three children to follow the applicant to Morocco, although Mrs Boumlal had been living in the Netherlands for more than sixteen years and the children had been born there.21 Although this has not been made explicit, it seems relevant that the countries of origin in Boultif and Amrollahi were non-western, Islamic countries to which western women would have to follow their husbands. Especially in Amrollahi, the implicit assumption seems to be that a western woman cannot be expected to live in an Islamic country like Iran. Although it is favourable that the Court takes the position of women in a certain country into account in its decisions, this is not without problems. Firstly, the European Court case law is in danger of reproducing the image of barbaric, Islamic countries that we have to protect ‘our’, and maybe even ‘their’ women from. What is more, it suggests that there is no problem with a woman having to follow her husband to the United States, or Nigeria, as in Omoregie. A struggle about the ‘foreignness’ of the country emerges, by pointing to language, (cultural) distance and religion. In this way, the Court makes the protection of the insider’s interests dependent on the cultural circumstances of the country of origin of the migrant partner.   Sezen, 31 January 2006, 5015/99.   Amara, 5 October 2004, 6914/02. It should be noted that because of Morocco’s refusal to allow renunciation of nationality, Mrs Boumlal could not prevent the possession of dual nationality. See also Tajdirti,11 October 2005, 22050/04 (inadmissable). 21   Ibid. 19 20

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Since Boultif, the interests of the insider spouse have become marginalised even further. It has been observed that the Court has upheld the guiding principles theoretically, but has limited its application.22 In a similar vein, Van Walsum concludes that the Court has given more room to states to expel immigrants after serious crimes, in spite of close family ties in the country of residence.23 The Court’s judges have made similar observations in dissenting opinions. Judges Costa, Zupanic and Turmen in their joint dissenting opinion in Üner point to the marginality of considerations concerning the insider spouse: ‘are we not seeing here the implicit emergence of method which gives priority to one criterion, relating to the offence, and treats the others as secondary and marginal?’24 So, is it the seriousness of the crime that is decisive? In Cherif three children, 10, 7 and 3 years of age, were involved, who were born in Italy and had Italian nationality, just as their mother, whom Cherif had married in 1996.25 The dissenting judges stated that their interests had been taken insufficiently into account, as the children ‘etainet scolarisees en Italie et y avaient toutes leurs attaches familiales et socials’. A move to Tunesia seemed, in their eyes, not realistic or humane. In the Court’s judgment, on the other hand, the children’s interests were considered very differently; ‘A l’époque de l’expulsion, elles étaient donc encore jeunes et capable de s’adapter. Nées d’une Italienne, elles possèdent la nationalité de cet Etat. Elles pourraient donc, si elles suivaient leure père en Tunisie, revenir en Italie régulièrement pour rendre visite aux membre de leur famille dans ce pays’. Apparently, possession of citizenship of the country of residence as one of the guiding principle in expulsion cases can turn out either way: it can make the interference of family life either more or less serious. It should be noted that no criminal proceedings proceeded Cherif ’s expulsion. He had been in trouble with the police, and was convicted two times for drugsrelated offenses; his last conviction (13 months imprisonment) dated from 1999. Nevertheless, these convictions were taken into account by the Court, as were arrests that did not lead to a conviction. Cherif was expelled in 2007 because of suspicions of regular contacts with leading figures of Islamic fundamentalism who had been planning terrorist acts; these suspicions were later substantiated by the Italian authorities as frequenting places – according to the applicants: mosques- that were subject to investigations. After his expulsion to Tunesia, Cherif was imprisoned- and according to the applicants

  Pieter Boeles in annotation to Kaya, Jurisprudentie Vreemdelingenrecht 2007/437.   Sarah Van Walsum in annotation to Boultif, Rechtspraak Vreemdelingenrecht 1950–2009, 15. 24   Üner, 18 October 2006, 46410/99. 25   Cherif, 7 April 2009, 1860/07. 22 23

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tortured- for membership of and collecting funds for a terrorist organization and was released in 2008. The Court’s conclusion was that the suspicions smd  the conviction in Tunisia justified the expulsion and interference with family life. This case implies that a serious crime is not always required. Mere suspicions of involvement in terrorism is enough to justify an interference with family life, even in case of long term regular residence (14 years), an 11-year marriage with a citizen and three citizen children born and raised in the country of residence. According to the dissenting judges, the Court’s judgment opened the door to arbitrariness. It is generally acknowledged that the Court takes drugs offenses very seriously. Two cases involving serious drugs offenses, Khan and Mbengeh, had very different outcomes. In Khan, the deportation measure was thought not proportionate and not necessary in a democratic society.26 The case of Mbengeh was found manifestly ill-founded and inadmissible.27 The different outcome of these cases cannot be explained by the seriousness of the crime. Khan’s offense was the more serious one: he was was sentenced to 7 years for importing heroin, and Mbengeh to 4 years imprisonment for dealing heroin. Neither of them had reoffended. At first glance, Mbengeh seemed to have a stronger claim because of his stronger family ties. Khan had a British girlfriend and a child was born during the deportation procedures. He had never lived with his girlfriend and child, but visited his child on a daily basis. The Court did not take the family life with the British girlfriend and child into account, because the relationship had started after the conviction. Khan lived with his mother and brothers, who were all sick and depended on him. This, however. did not constitute family life, but private life. Mbengeh, on the other hand, had lived together with his Finish wife and ten year old son since his birth, until he was expelled in 2006. The Court concluded that the deportation would have a continuing disruptive effect on the boys’ life, and that the wife and child could not be expected to follow him. The surprising conclusion was that telephone contact could be maintained from Gambia and wife and child could visit him. This conclusion confirms once more that, in the eyes of the Court, a father’s presence is not vital. In both cases, the applicants had a permanent residence permit and had been staying in the country a conservable time. Khan was admitted as a child at the age of three. The Court took into account the duration of Khan’s stay

  Khan, 12 January 2010, 47486/06.   Mbengeh, 24 March 2009, 4361/06 (inadmissable).

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in the United Kingdom, and his very young age at the time of his entry. In Mbengeh, the Court also took into account the considerable length of his residence in Finland, although he had not spent his youth there. Both had strong ties to the country of residence and no strong ties to the country of origin. In Khan case, Pakistan was the country of origin only of his parents. He had never been to Pakistan, and had no immediate relatives there. Still, it seemed that Mbengeh had also never returned to Gambia, and the wife and child had never lived there. The Court merely stated that ‘many years had passed since the applicant last lived in Gambia’ but also that there was no language barrier, and he could establish himself there, Regular visits or contacts with relatives would probably have been mentioned if they had occurred. Farahat has concluded that the Court privileges exclusive and static affiliations to one country instead of taking into account transnational affiliations. The Court thereby leaves transnational migrants without effective protection against expulsion.28 Khan nor Mbengeh were transnational migrants. Khan’s ‘lack of any continuing ties to Pakistan’, more than the strength of his ties in the United Kingdom, seem to have been decisive. Why this was not decisive in Mbengeh, remains obscure. 4. Conclusions The first question raised in the introduction was: when and how are the interests of the insider family member taken into account? The review of cases has demonstrated that the insider spouses are not always applicants before the Court. However, whether they are applicants or not does not necessarily correspond with the amount of attention paid to their interests. Although one might assume that in the case of negative obligations the interests of the insider spouse play a larger role, this is not necessarily the case either. Secondly, as has been demonstrated, no evaluation of the insider’s ties with the country of citizenship or residence takes place. The Sen case, where the roots in the country of residence of the Turkish parents were taken into account, has not marked a change in the Court’s case law in this respect. Most often, we have no idea of the roots that insider spouses have in the country of residence or citizenship. Finally, in most cases, the Court constructs the choice between home and family, not as a consequence of state acts, but as the consequence of the choices

  Farahat 2009, p. 254.

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of the insider spouse. The responsibility not to disrupt family life lies with the insider spouse. Several explanations for this line of reasoning by the Court were discussed. First, although the Court has acknowledged that family reunification is about insiders, it has not taken account of the consequences of such a position. Family reunification cases are still predominantly seen as immigration cases. In the balancing of state against individual interests, the focus is on the migrant/outsider. Secondly, the ties to the country of citizenship or residence are not discussed, because either these ties are, presumably, attached to citizenship, or they are thought not to be relevant. Here, implicit ethnic standards play a role. Insider partners with a migrant background, even in the case of long-term residence and naturalization, are not always perceived of as insiders who have sunk roots there. Thirdly, the Court seems to evaluate relationships of insider men and women differently. Women are held responsible to guarantee family life, to be willing to follow their husbands to the country of origin in order to make contact between father and child possible. The case law reviewed here is too limited to draw strong conclusions, but my suggestion is that men are not expected to follow in the same way as women. Elsewhere, I have suggested that the Court may be inclined to protect western, white women from having to follow their husbands to ‘barbaric’, Islamic countries.29 The developments since Boultif provide a more ambiguous picture. We have seen that the problems that a woman might face in the country of origin of her partner can be ignored, and how the ‘foreignness’ of a country may be manipulated by looking at some circumstances and ignoring others. Furthermore, relationships of insider women with migrant men are perceived as a more serious threat to restrictive immigration policies than relationships of insider men with migrant women. The Court equates being in an asylum procedure with illegal stay, and relationships developed during asylum procedures as an evasion of immigration policies. Finally, although the Court has acknowledged that migrants may develop relations with people in the society in which they live, it does not acknowledge that insiders have built relationships with migrants in their society too. The Court thinks of nation-states as closed units to which migrants may be admitted as an exception to the rule. It does not acknowledge that insiders come to love their neighbours, who happen to be asylum seekers, or travel around the globe and develop family relations with outsiders.

  De Hart 2007, pp. 148–150.

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These implicit or sometimes explicit assumptions serve as techniques for inclusion and exclusion that divert from the interests of insiders in family reunification. These techniques allow the Court to uphold the starting point that a state does not have to respect the choice of residence by a couple and is not obligated to admit the foreign partner of a citizen or of a permanent resident.30 However, citizenship and permanent residence lose their meaning if they do not include the right to establish a family in the country in which one is living.31 To ensure this right is a job not only for the Court, but also for couples, lawyers and legal scholars. The review of case law has demonstrated that insider partners and children are not always one of the applicants before the Court. Partners and children should be applicants before the Court and their interests should be explicitly pout forward.32 Also, the applicants tend to go along with the Court’s inclination to look only at the ties with the country of origin of the migrant partner, not the country of residence or citizenship. They strategically ‘orientalise’ the country of origin of the migrant partner as strange and foreign. In this way, the choice forced upon the couple between home and family becomes obscured. Carens’ principles could be used as an analysing tool and put to the fore that family reunification is about insiders, not outsiders. It would force the Court to make its implicit assumptions more explicit, so that they can become the subject of discussion and contestation.

  Abdulaziz, 28 May 1985, 9214/80, 9473/81, 9474/81.   P. Boeles, ‘Nederland en toekomstig Europees gezinsherenigingsrecht’, Migrantenrecht, 2000, p. 178–187; A. Walter, Reverse Discrimination and Family Reunification, Nijmegen: Wolf Legal Publishers 2008, p. 21. 32   See Hanneke Steenbergen in her annotation to Solomon, Jurisprudentie Vreemdelingenrecht 2000, 263, stating that the Court will take the interests of family members and children more into consideration when the children are also applicants. 30 31

An Ideal Husband? Marriages of Convenience, Moral Gate-keeping and Immigration to the United Kingdom Helena Wray 1. Introduction From a British perspective, there is an admirable simplicity in the definition of a marriage of convenience adopted in 1997 by the Council of Ministers of the European Union: a marriage concluded ‘with the sole aim of circumventing the rules on entry and residence’.1 Where immigration is the sole aim of a marriage, refusal to recognise rights acquired on marriage is unobjectionable. Since the mid 1960s, the UK has frequently excluded not only those whose marriages were contracted with the ‘sole aim’ of avoiding immigration control but those for whom immigration played a contributory or even negligible role in the decision to marry. This contribution begins, in part 2 below, by describing the difficulties in defining a ‘marriage of convenience’ or ‘sham’ or ‘bogus’ marriage. The legal response to immigration through marriage is then analysed in four sections representing different phases in this response. Part 3 describes the early response to marriage through immigration, a ban upon the entry of husbands, in the period from 1969 to 1985. Part 4 considers the application of the ‘primary purpose rule’ from 1985 to 1997. The period after 1997 is considered in two parts. The first, part 5, looks at the requirement for aspiring immigrant spouses to show that the parties intend to live together and draws upon prior empirical work carried out by the author.2 The second, part 6, considers legislative changes implemented in February 2005 which are argued to have been, in large measure, a response to perceived abuse of Community law. The aim of these measures has, in large part, been to prevent, not only the entry of those who may have entered a sham marriage, but of immigration through marriage generally. While moral gate-keeping, in the sense that   Council Resolution 97/C 382/01 of 4 December 1997 (Official Journal C 382 of 16.12.1997).   H. Wray, ‘Hidden Purpose: UK Ethnic Minority International Marriages and the Immigration Rules’, in: P. Shah (ed.), Migration, Diasporas And Legal Systems In Europe, London: Cavendish Publishing 2006, p. 163–184.

1 2

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preference is given to those whose marriages comply with majority values in the UK, is undoubtedly a characteristic of immigration control, the broader exclusionary impact of these laws must not be overlooked. 2.  Defining the Undefinable: Genuine and Sham Marriages A marriage of convenience is valid under UK law.3 Whether it gives rise to residence rights is determined by immigration law.4 The terms ‘marriage of convenience’, ‘bogus marriage’ and ‘sham marriage’ have all been used to describe marriages supposedly entered for immigration purposes. The latter terms describe more accurately the problem that immigration controls profess to address but content matters more than terminology. The Council of Minis­ ters’ ‘marriage of convenience’ is a narrower definition than that of a ‘sham marriage’ in S. 24(5) Immigration and Asylum Act 1999 which defines such a marriage as one entered into ‘for the purpose of avoiding the effect of ’ UK immigration law. Whatever the terminology, a broad conception of such marriages is problematic. It is trite to observe that many successful marriages in many cultures are motivated by pragmatism.5 English fiction has long debated the factors that should determine a decision to marry and there is an extensive academic literature on the economics of marriage.6 The ‘marriage market’ is universal although its form differs between cultures and there is a tendency to choose spouses who resemble or complement oneself in terms of age and b ­ ackground.7   Silver v Silver [1955] 1 W.L.R. 728 and see also Lord Hailsham in Vervaeke v. Smith [1983] A.C. 145. 4   UK immigration law may be found in Acts of Parliament. However, the practice to be followed by decision-makers is mostly to be found in the Immigration Rules made by the Secretary of State under S.3(2) Immigration Act 1971. The most recent version (HC 395 as amended) is available on the UK Border Agency website: http://www.ukba.homeoffice.gov .uk/policyandlaw/immigrationlaw/immigrationrules/. 5  See R. Ballard, South Asian Families (http://www.casas.org.uk/papers/pdfpapers/families. pdf), and, more recently, ‘Riste’ and ‘Ristedari’: the significance of marriage in the dynamics of transnational kinship networks (http://www.casas.org.uk/papers/pdfpapers/ristedari.pdf) for descriptions of South Asian marriage practices. 6   The enduring popularity and endless adaptations of Jane Austen’s novels, with their extended discussion as to good or bad reasons for marrying, suggest a universal preoccupation. For a survey of the academic literature, see S. Grossbard-Shechtman, Marriage and the Economy, Cambridge: Cambridge University Press 2003. 7   Grossbard-Schechtmann 2003, p.3; A. Stutzer and B. Frey, Does Marriage Make People Happy, Or Do Happy people Get Married? Working Paper No. 143, University of Zurich: Institute for Empirical Research in Economics 2003, p. 2–3. 3

An Ideal Husband?   353

There is thus no binary divide between marriages entered into for ‘good’ reasons such as sexual compatibility or companionship and those entered for ‘bad’ reasons such as social or economic gains. The latter may partly determine the former and motives cannot be neatly disentangled. An immigration motive for marriage must be seen in that context. Immi­ gration status may add to a potential spouse’s attractions without it being the only reason for marriage.8 This is obvious but it exposes the problem of measures that aim to neutralise the immigration consequences of a marriage. Where immigration is the only reason for a marriage, it will come within the definition adopted by the Council of Ministers and the major difficulty is the practical one of detection. However, when immigration is a partial reason, seeking to neutralise that factor will cause the refusal of applicants whose marriages are not sham. In the UK, such refusals, rendered palatable by a discourse of ‘abuse’ and ‘fraud’, have frequently been the dominant aim of policy. 3.  1969–1985: Some More Equal than Others After the Commonwealth Immigrants Act 1962 ended most New Common­ wealth primary immigration, secondary immigration of family members increased sharply.9 The number of potential entrants, estimated at around 500,000, caused growing alarm and it was repeatedly alleged that abuse was widespread although critics were unspecific as to its form.10

  See Ballard, ‘Riste’ and ‘Ristedari’, p. 12 for a discussion of how this factor operates in the Punjabi community.  9   A distinction was formerly made between aliens (i.e. nationals of non-Commonwealth countries) and Commonwealth citizens. Aliens have been subject to restriction since the Aliens Act 1905. Commonwealth citizens had free entry to the UK until the 1962 Act. From then on, there was a gradual assimilation of rights and, except in a few matters, their position is now identical. In the UK, immigration was, for a long time, synonymous with immigration from the New Commonwealth i.e. those mainly non-white countries that gained independence relatively late and were important sources of post-war migration to the UK. Accounts of the legal response include A. Dummett and A. Nicol, Subjects, Citizens, Aliens and Others, London: Wiedenfeld and Nicholson 1990; S. Sachdeva, The Primary Purpose Rule in British Immigration Law, Stoke on Trent: Trentham Books 1993; and J. Bhabha and S. Shutter, Women’s Movement: Women under Immigration, Nationality and Refugee Law, Stoke on Trent: Trentham Books 1994. 10   HC Hansard, Written Answers, 1st April 1965, col. 268. One MP, Anthony Buck, claimed that 60% of dependants were wrongly admitted (HC Hansard, 22nd January 1969, cols. 547–548). See, also V. Bevan, The Development of British Immigration Law, London: Croom Helm 1986, p. 246–247.  8

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The entry of husbands and fiancés caused particular suspicion due to traditions of patrilocal marriage and fears of labour displacement. In 1969, after the number of Commonwealth husbands and fiancés had risen to 1,676 per year, their admission was ended altogether unless there were ‘special features’.11 Meanwhile, administrative measures such as compulsory entry clearance and long queues began to ration the number of wives and children from New Commonwealth countries.12 The prohibition on husbands mainly affected black and Asian families as white men were often permitted to enter anyway and white British women were better able to plead ‘special features’, arguing that they could not relocate to an alien environment.13 Nonetheless, the ban was the subject of energetic campaigning by pressure groups who focused principally on the hardship to white women.14 Parliamentary discussion was also confined to the effect on white women. For example, the MP Lena Jeger, who moved a Bill to remove the ban, stated that, in the enormous post-bag she had received on the question, only a few cases involved husbands from Asian countries.15 In 1974, the ban was lifted. Between 1974 and 1976, the number of Com­ monwealth husbands and fiancés admitted rose from around 500 to 1800 per year.16 In 1977, new rules were introduced aimed at preventing the entry of men through marriages of convenience.17 In the meantime, women and children were subject to increasingly restrictive practices by entry clearance officers who relied upon faulty recall and lack of formal documentation to label applications bogus. Press reports in 1979 revealed that single women from the sub-continent had been subjected to ‘virginity tests’, those who ‘failed’ being rejected as ‘bogus’ fiancées.18 In 1979, the Conservatives won power on a manifesto that had promised to end the admission of all husbands and fiancés. However, the new rules eventually permitted women who were British citizens born in the UK to sponsor husbands, thereby excluding women born abroad who later acquired

  HC Hansard 30th January 1969 col. 367.   J. Evans, Immigration Law, second edition, London: Sweet and Maxwell 1983, p. 128. 13   Dummett and Nicol 1990, p. 206–207. 14   Bhabha and Shutter 1994, p. 57–59. 15   HC Hansard, 21st June 1974, col. 884. 16   Evans 1983, p. 133. 17   A marriage of convenience was defined as one entered primarily to obtain admission with no intention that the parties should live together permanently as husband and wife (HC 238 para 47). 18   Dummett and Nicol 1990, p. 252; S. Juss, Discretion and Deviation in the Administration of Immigration Control, London: Sweet and Maxwell 1997, p. 119–121. 11 12

An Ideal Husband?   355

c­itizenship. There was an exception for women born abroad to British ­parents.19 As a result, the ability to sponsor a husband became mainly the preserve of white women. However, an overtly discriminatory regime was becoming untenable. In 1985, the European Court of Human Rights found that the rules discriminated on grounds of sex.20 In response, the government amended the rules to allow all men and women who were British citizens or settled to sponsor applications. However, applicants were now subject to numerous conditions, including the primary purpose rule.21 From 1965 onwards, abuse of immigration through marriage had been widely alleged in the press and by politicians. However, there was little attempt to quantify the alleged fraud nor the form this took. Abuse was presumed to exist because of the large numbers of applicants or potential applicants. New Commonwealth male spouses suffered a double lack of legitimacy as nonwhite immigrants moving to their wives’ place of residence.22 The legal and administrative measures taken during this time were, quite obviously, not limited to the detection of marriages of convenience but at preventing unwanted black and Asian immigration. 4.  1985–1997: Primary Purpose – Exclusion Under the ‘primary purpose’ rule, applicants had to prove ‘that the marriage was not entered into primarily to obtain admission to the United Kingdom’.23 The rule had been present in the Immigration Rules since 1977 and became a separate requirement in 1983 when the burden of proof also shifted to the applicant, so that applicants had to establish that a reason other than immigration was the dominant motive for the marriage.24 When the immigration rules were changed in 1985 to allow all British citizens and settled women   HC 394, paras 50–55. Even when a husband was eligible to apply he could be refused on the grounds of primary purpose, intention to live together or failure to have met. 20   Eur. Court HR, Abdulaziz, Cabales and Balkandali v UK decision of 28th May 1985 [1985] 7 EHRR 47. 21   HC 503, para 46. 22   For a general account of the period, see Dummett and Nicol 1990, chapters 11, 12 and 13, or Bhabha and Shutter 1994, chapters 2, 3 and 4. The parliamentary records for the period reveal numerous claims of abuse inferred from the number of applicants. See, for example, Earl of Albemarle HL Hansard, 26th July 1967, col. 3, Sir C. Osborne and Captain Kerby HC Hansard, 9th May 1968, Written Answers, cols. 125–126. 23   HC 251, para 50. 24   HC 169, paras 54–55. 19

356  Helena Wray

to sponsor husbands and fiancés, primary purpose applied to these applicants and its role became even more critical. If immigration was found to be the primary purpose, the applicant would be refused even if other characteristics of a marriage such as cohabitation or affection were present although, as time went on, some of the rule’s harshest characteristics were mitigated. From 1986, after R v IAT ex p. Arun Kumar, couples could use evidence of ‘intervening devotion’ such as periods of cohabitation, remittance of funds or correspondence to argue that immigration had not been the primary purpose of the marriage.25 A concession granted outside the rules in 1992 provided that couples who had been married for five years or who had a child entitled to live in the UK would no longer be refused on primary purpose grounds.26 Nonetheless, the rule enabled the refusal of applicants from poor countries to whom an immigration motive could easily be imputed, particularly in arranged marriages where the motives for marriage familiar in the West were often absent. Refusal on primary purpose grounds was often compounded by a sceptical  attitude towards evidence put forward in support of applications which allowed officials to draw unfavourable conclusions about the nature of the marriage or even the identity of the parties. According to the contemporary literature, refusals were often based upon discrepancies in the answers given by the parties to intrusive and detailed questioning, defective documentation (an inevitability in an undocumented society) and minor deviations from a stereotyped view of customary practice.27 To give a flavour, Juss cites refusals supported by discrepancies in answers to questions about the colour of the bride’s dress, whether the buffalo provided milk, where the family drew their water, who met the sponsor at the airport or the name of one party’s barber and tailor.28 Thousands of applicants, particularly from the Indian sub-continent, were refused under the primary purpose rule. Actual statistics as to the proportion of husbands refused under primary purpose are scarce but Sachdeva states that, in 1983, even before the rule achieved maximum impact, 47% of husbands and fiancés from the sub-continent were refused, 73% of these being on the grounds of primary purpose.29 High refusal rates continued throughout the period so that, in 1995, 58.96% of husbands and fiancés and 27.96% of   [1986] Imm AR 446.   Sachdeva 1993, p. 168. 27   See, for example, Juss 1997, chapters 1, 2 and 3 or Commission for Racial Equality, Immigration Control Procedures: Report of a Formal Investigation, London 1985, chapter 4. 28   Juss 1997, p. 64–67. 29   Sachdeva 1993, p. 90. See also Bevan 1986, p. 251. 25 26

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wives and fiancées who applied from the sub-continent failed in their applications. Although later immigration statistics do not show the reason for refusal, it is likely that a significant proportion were refused on primary purpose grounds.30 On the other hand, Macdonald and Blake said in 1991 that they had ‘still to hear of an American, Australian or New Zealander who [had] failed the primary purpose test’.31 Determined couples might eventually secure entry although usually after considerable delay. Others, less capable, well-informed or well-advised, did not.32 The psychological and practical effects fell mainly upon women, the ‘immigration widows’, who had to decide whether to live alone in the UK or move abroad to be with their husbands.33 The rule ‘generated more anger and anguish than perhaps any of the other Immigration Rules’.34 Primary purpose clearly went beyond the narrow definition of a marriage of convenience, a marriage entered solely for immigration purposes. It theoretically distinguished between marriages where immigration was a subsidiary factor and those where it was the major motivation. However, as discussed in section 2 above, it is not possible to disentangle and weigh motives in this way and the effect was the separation of many couples who intended to live together as husband and wife. The rule was often justified on cultural grounds. For example, one MP said that ‘(i)t cannot be said that the arranged marriage creates suffering if it is not allowed, because the girl does not know the man who may be selected for her in far away Jullunder. Such a girl is increasingly coming to the view that she does not wish a man to be selected for her in Jullunder.’35 While there were cultural and moral aspects to its application, the practical effects of the rule went well beyond the protection of reluctant spouses to the minimisation of non-white immigration through marriage. Prior to its election in 1997, the Labour Party promised abolition of the primary purpose rule due to its ‘arbitrary and unfair results’.36 Immigrant groups   Wray 2006, p. 166.  I. Macdonald and F. Webber, Macdonald’s Immigration Law and Practice, London: Butterworths 1991, p. 260–261. 32   N. Mole, Immigration: Family Entry and Settlement, Bristol: Jordan and Sons 1987, p. 37. 33   W. Menski, ‘South Asian Women in Britain, Family Integrity and the Primary Purpose Rule’, in: R. Barot, H. Bradley and S. Fenton (eds), Ethnicity, Gender and Social Change, Basingstoke: Macmillan Press, 1999, p. 81–98. 34  I. Macdonald and N. Blake, Immigration Law and Practice, London: Butterworths 1991, p. 260–261. 35   HC Hansard, 15th February 1983, col. 226. 36   Labour Party Manifesto 1997 (http://www.labour-party.org.uk/manifestos/1997/ 1997-labour-manifesto.shtml). 30 31

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welcomed the fulfilment of this promise in June 1997 and not even antiimmigration groups unequivocally support its reinstatement.37 The international arranged marriage remains the subject of critical scrutiny as the next section argues. However, the rule had become anachronistic, generating disproportionate resentment in well-established communities that were a significant electoral constituency. 5.  1997 to Present: Intention to Live Together and ‘Accidental’ Moral

Gate-keeping

5.1.  ‘Intention’ in Context The obligation to demonstrate that ‘each of the parties intends to live permanently wi