Category: 2.1 Non discrimination, equality and minority integration

Les migrants en situation irrégulière, sujets d’une discrimination légale : l’exemple du droit à la liberté et à la sûreté

ORIGINAL PUBLISHED ON CDRE SITE ON 19 OCTOBER 2015

Par Chloé Peyronnet, EDP (Lyon)

Pendant que la « crise » des réfugiés occupe l’agenda politique et médiatique européen, la politique de retour de l’Union européenne continue à s’appliquer aux migrants non éligibles à une protection internationale. La directive 2008/115/CE a fait l’objet d’une nouvelle décision préjudicielle en interprétation (C-290/14). Cette dernière confirme une ligne jurisprudentielle faisant primer une conception sécuritaire de l’effet utile sur les droits fondamentaux des intéressés, en l’occurrence le droit à la liberté et à la sûreté.  Victimes d’un déni d’habeas corpus, parfois d’une double-peine et pouvant cumuler les statuts de non-éloignables et d’indésirables, les migrants en situation irrégulière se voient appliqué un droit à la liberté et à la sûreté amputé qui s’avère de facto discriminatoire. 

En janvier 2015, le nombre de morts en mer Méditerranée est devenu trop important pour être ignoré. Depuis lors, le sort des migrants sans-papiers cherchant à regagner le territoire des États-membres de l’Union européenne semble être au centre de l’attention médiatico-politique. En réalité, malgré l’emploi fréquent du terme générique  de « migrants », seuls les demandeurs d’asile ont l’heur d’être placés sous le feu des projecteurs. Les migrants familiaux, les migrants économiques et les migrants potentiellement éligibles à une protection internationale dont ils ne peuvent faire la demande sont de facto exclus du paysage journalistique et de l’agenda gouvernemental. Sans s’attarder sur l’extrême porosité des situations humaines recouvertes par ces catégories juridiques, l’on peut d’ores et déjà souligner que les problématiques de la gestion de l’immigration irrégulière n’ont pas disparu avec l’augmentation massive du nombre de demandeurs d’asile (qui, par définition, ne peuvent être qualifiés de migrants irréguliers tant que leur demande n’a pas été définitivement rejetée). En effet, dans le cadre de l’espace Schengen, tout migrant sans-papiers qui n’a pas obtenu de protection internationale est en situation irrégulière et a dès lors vocation à être « retourné » vers le territoire d’un Etat tiers, qu’il s’agisse de son Etat d’origine ou d’un Etat lié par un accord de réadmission avec l’Union européenne ou l’un de ses Etats membres.

Au sein de l’espace Schengen, une harmonisation minimale a été réalisée par la directive 2008/115/CE du 16 décembre 2008 (directive « retour »), dont l’article 15 encadre la « rétention à des fins d’éloignement » (qualifiée en droit français de « rétention administrative »). Cette privation de liberté, qui se singularise par son appartenance à la matière administrative, est applicable aux migrants en situation irrégulière faisant l’objet d’une procédure de retour (initiée en droit français par une obligation de quitter le territoire français ou une mesure d’expulsion). Exclue de la matière pénale avec la bénédiction de la Cour EDH, cette mesure est une éloquente illustration des « discriminations légales » dont font l’objet les migrants en situation irrégulière quant à la protection de leurs droits fondamentaux, dont la vocation universelle s’avère parfois chimérique.

Entre déni d’habeas corpus et double peine Continue reading “Les migrants en situation irrégulière, sujets d’une discrimination légale : l’exemple du droit à la liberté et à la sûreté”

AN INSUBSTANTIAL PAGEANT FADING: A VISION OF EU CITIZENSHIP UNDER THE AG’S OPINION IN C-308/14 COMMISSION V UK

PUBLISHED ON EU LAW ANALYSIS on Wednesday, 7 October 2015

by Charlotte O’Brien,

Senior Lecturer, York Law School

The political message being sent by irate governments to ‘back off’ from national welfare systems’ assumed prerogative to discriminate between home nationals and EU nationals is being received and applied with alacrity by the Court of Justice. The current direction of travel resiles from earlier progressive visions of EU citizenship, and in C-140/12 Brey, C-333/13 Dano and C-67/14 Alimanovic we see that which was once ‘destined to be [our] fundamental status’ receding ever further from view. Advocate General Cruz Villalón’s Opinion in Commission v UK continues the retreat, arguing that the Commission’s action challenging the UK right to reside test for family benefits should be dismissed. The result may, in the current environment, be unsurprising. But getting there with existing legal tools is problematic.

The Opinion contains a number of uncomfortable contortions to give undue deference to the national rules, and avoid tackling the underlying conflict of rules and approaches. It represents quite startling judicial activism in embroidering the legislation with unwritten limitations as to personal scope, tinkering with the subject matter, and asserting an unwritten licence to discriminate whenever something smells like a welfare benefit. The effect is as though the Court’s new teleological guiding principle should be that the legislature would have wanted at all costs to avoid offending the UK government.

The UK right to reside (RTR) test prevents any EU national who does not meet the criteria in Art 7 Directive 2004/38 from receiving Child Benefit or Child Tax Credit, both of which were accepted as being ‘family benefits’, so ‘pure social security’ (rather than special non-contributory benefits in Brey, Dano and Alimanovic) under Regulation 883/2004. The Commission challenged the test’s lawfulness on two grounds – that it imported extra conditions into the ‘habitual residence’ test, to undermine the effects of Regulation 883/2004, and that it is discriminatory since it only applies to non-UK citizens. The AG’s Opinion is remarkable, in its ability to reject both without engaging with either. This analysis deals with four key issues arising from the Opinion: (i) stitching, splicing and embroidering Reg 883/2004; (ii) the ‘inherent’, ‘inevitable’ and ex ante discrimination fudge; (iii) the parallel reality in which the UK does not presume unlawful residence; and (iv) the failure to notice that the UK automatically refuses social assistance to those reliant on ‘sufficient resources’.

(i) stitching, splicing and embroidering Regulation 883/2004

The AG is at some pains to determine whether the ‘right to reside’ test is part of the habitual residence test (HRT), or a separate test added on, suggesting that it is only if it is presented as the former, does the Commission have a case. As the UK government ‘distanced’ itself during proceedings from the combined test approach, and argued that it was a separate test of lawful residence, so the AG commented that the Commission’s case was ‘weakening over the course of the dispute’. Indeed, on the basis that the test was ‘independent’ of the HRT, the AG argued that the first ground should be dismissed. This is perplexing. It seems to be a matter of regulatory semantics whether the RTR is part of the HRT, or is applied as well as the HRT, if the effect – to undermine Regulation 883/2004 – is the same.

For the record, the conclusion that they are separate tests is unconvincing anyway. For all benefits with an official ‘habitual residence test’ the regulations provide that a claimant cannot be habitually resident unless she has the right to reside in the CTA (Income Support (General) Regulations 1987, reg 21AA; Jobseeker Allowance Regulations 1996, reg 85A; Employment and Support Allowance Regulations 2008, reg 70(2); State Pension Credit Regulations, reg 2; see DWP, DMG, 072771). For CB and CTC the terminology is slightly different – the words ‘habitually resident’ are not used, but a person must be treated as being in the UK. And to be treated as being in the UK, you have to have a right to reside (Child Benefit Regulations 2006, Reg 23(4)(a); Tax Credits (Residence) Regulations 2003, Reg. 3(5); CBTM10010 – Residence and immigration: residence – introduction).

However, whether we treat the RTR as part of habitual residence, or as an extra test, the effect in both cases is to add conditions onto the circumstances in which a person is treated as meeting the ‘residence’ criteria of Regulation 883/2004. That Regulation offers a clear, exhaustive list for allocating ‘competence’ of Member States for benefits, providing a residual category for the economically inactive, at Art 11(3)(e) in which the Member State of residence is competent. Once competence has been established, that State is then responsible for the payment of family benefits, subject to the non-discrimination provision.

The scheme of the Regulation is intentionally broader than that of Directive 2004/38 – applying a different personal scope for a start (covering all those who ‘are or have been subject to the legislation of one or more Member States’), and covering pensioners, those between jobs, those who might fall outside of the Dir 2004/38 Article 7(3) retention provisions – essentially, those who should be covered by social security provisions. To apply the right to reside test is to hack down the rationae personae of the Regulation to emulate that of Directive 2004/38 – an approach not endorsed, implied or merited in the Regulation. The AG’s assertion that law should not exist in ‘separate compartments’ as justification for splicing the instruments together and embroidering an extra condition into the Regulation rather too easily ignores the different purposes and scopes of the instruments. Similarly, the different material issues – the restriction of social assistance now embodied in Directive 2004/38, versus award of social security, are inappropriately assimilated. The AG notes, apparently approvingly, the UK’s assertion that ‘the two benefits at issue in the present case have some characteristics of social assistance’. This goes unexamined, and helps form the context in which the different nature of social security, and different subject matter of the Regulation, is effectively ignored. In sum, we have an approach in which if a benefit is a ‘bit like’ social assistance, and a legal instrument is in roughly the same area as Directive 2004/38, then unwritten restrictions kick in.

In the specific case of family benefits, the Regulation’s residual category should provide a guarantee that families do not fall through the cracks and find themselves disentitled to any family benefits, since many Child Benefits are tied to residence. This also serves the ‘bonus’ purpose of protecting children, who are not the agents of migration, and who the legislature and the Court have hitherto taken pains to protect from suffering the penalties of their parents’ choices and/or misfortunes – either out of an interest in child welfare, or as an instrumental way of avoiding disincentives (risks to their children’s welfare) for workers to migrate.

Here it is worth emphasising that when we speak of falling through the cracks, we mostly speak of people who have been working (rather than those who have never worked). The right to reside test results in a strict bifurcation between those ‘working’ and those not. The rules on retention of worker status are stringent and exclusionary, so that people can be working and contributing for many years and still fall over welfare cliff edges. Regulation 883/2004 should offer some protection to their pre-school children in such cases, even where Directive 2004/38 is (according to emerging case law) rather harsher to the parents.

However, in the AG’s approach we can see the Directive, having already been transformed from an instrument to promote free movement into a instrument to prevent benefit tourism (Dano); being promoted to the status of a fundamental principle of limitation, to be (retrospectively) mainstreamed into other (higher) legislative instruments – exerting restrictions that are not there written.

(ii) the ‘inherent’, ‘inevitable’ and ex ante discrimination fudge;

The AG avoided dealing with the question of whether the RTR test discriminates contrary to Regulation 883/2004, by finding that the RTR prevented the Regulation from being applicable at all – apparently treating ex ante discrimination as de facto lawful. This conceptual approach is deeply problematic – can Member States really avoid the non-discrimination obligations contained in legislation by applying discriminatory gateways to access that legislation?

As noted above, once competence of a Member State has been established for the purposes of Regulation 883/2004, it is then – according to that instrument, bound by non-discrimination duties (Article 4). However, under the proposed approach, there will be people for whom no Member State has competence, because competence is to be determined according to a set of restrictions in a completely different instrument which apply a different concept to a different set of people for a different set of benefits. And if they are in this way found not be within any State’s competence, the question of discrimination is avoided.

To the extent that the AG does engage with non-discrimination duties, it is part of an imprecise discussion about the likelihood of the lawfulness of curbing benefits from non-nationals (benefit restrictions are ‘traditionally associated’ with requirements of legal residence). In drawing upon Dano and Brey, the fact that those cases dealt with benefits therein defined as social assistance is swept aside somewhat as the AG finds ‘there is nothing in those judgments to indicate that such findings apply exclusively to the social assistance benefits or the special non-contributory cash benefits with which those cases were concerned and not to other social benefits’. But there is plenty to indicate that social security benefits should be treated differently in their coverage in a different piece of legislation. It is surely very odd to suggest that the Court should list those instruments on which it was not ruling.

Recognising that the rules do treat UK nationals and non nationals differently, the Opinion makes some rhetorical points about discrimination as part of the natural ecosystem of free movement – ‘one way of looking at it is that this difference in treatment as regards the right of residence is inherent in the system and, to a certain extent, inevitable… In other words, the difference in treatment between UK nationals and nationals of other Member States stems from the very nature of the system.’ None of this does anything to address the question of the problem of direct versus indirect discrimination – the latter being rather easier to justify. It almost suggests that some degree of direct discrimination has to be accepted as a matter of pragmatism. Indeed, the characterisation of the rules asindirectly discriminating on the grounds of nationality is one of the most contentious issues in the case. Much as in C-184/99 Grzelczyk, an extra condition is imposed only upon non-nationals. Hiding behind the banner of indirect discrimination seems unconvincing if we posit a brief thought experiment. Imagine all EU national men automatically had an RTR, but all EU national women had to pass the RTR test; that could not be described asindirectly discriminating on the grounds of sex. While it could be argued that nationality is a different type of ground to sex, and so different differences are acceptable, the fact that we are dealing with direct discrimination remains. And this is not explored. The only thing that needs justification, under this analysis, is not the test, but the procedural checking, which we look at next.

(iii) the parallel reality in which the UK does not presume unlawful residence

The AG states that it cannot be inferred that the UK presumes that claimants are unlawfully resident, adding that European citizenship would preclude such a presumption, and that claimants should not systematically be required to prove they are not unlawfully resident.

However, the whole claims process in the UK does systematically require proof of claimants that they are (not un)lawfully resident. The right to reside test takes the limitations of Directive 2004/38 and makes them a priori conditions of the existence of the right to move and reside. There is no general citizenship-based right to reside that can be modified by limitations, with some discretion. The conditions come first, and must be demonstrably met, in each and every case. The UK’s assertion that ‘In cases in which there is doubt as to whether the claimant has a right of residence, an individual assessment of the claimant’s personal circumstances is carried out’ rather masks the process of assessment that decision makers are required to undertake according to the decision maker guidance on establishing whether a claimant really is or was a worker – using the UK’s own definition. That definition is flawed in itself, requiring evidence to meet a higher threshold than set in EU law, and the evidential hurdles can be considerable. Even for the most straightforward cases of worker, proof is required that earnings have been at or above the Minimum Earnings Threshold for a continuous period of at least three months. Those with variable earnings are expected to provide considerable evidence if they wish to ‘prove’ their right to reside. In cases where HMRC have reason to doubt conditions continue to be met for tax credit awards, they issue further, penetrating compliance checks, and in the UK government’s Budget Policy costings document, the government announced that the restrictions on benefits ‘will be augmented by additional HMRC compliance checks to improve detection of when EEA migrants cease to be entitled to these benefits. The checks will apply to all EEA migrant claims’. The system is set up to make the conditions constitutive of the right to free movement, effectively requiring all claimants to prove that they are not unlawfully resident, notwithstanding the apparent ‘background’ of EU citizenship, and claims are subject to systematic checking, notwithstanding Article 14(2) of Directive 2004/38.

The AG however, took the position that such checks are not systematic, but may be indirectly discriminatory, but that they were lawful, with the briefest of nods to justification – as though the mere mention of the UK’s public finances is sufficient to provoke a reverential hush, genuflection and swift retreat from the subject:

‘without any need to pursue the argument further, I consider that the necessity of protecting the host Member State’s public finances, (75) an argument relied on by the United Kingdom, (76) is in principle sufficient justification for a Member State to check the lawfulness of residence at that point.’

No data, it seems, is required.

Nor is any engagement with the question as to whether purely economic aims are legitimate aims for the purpose of justifying discrimination or restricting a fundamental freedom – on this, see AG Sharpston’s Opinion in C-73/08 Bressol.

(iv) the failure to notice that the UK automatically refuses social assistance to those reliant on ‘sufficient resources’.

The AG rounds up the Opinion by noting that in any case, the economically inactive are not completely hung out to dry – they should have their circumstances examined to determine whether they have sufficient resources not to become a burden on the public purse. Here, the AG emphasises that mere recourse to public funds should not bar a claimant from having a right to reside based on sufficient resources, and that their case should be assessed as to whether they are an ‘excessive’ burden. This is all very well, but speaks to a rather different reality to that experienced in the UK, in which the economically inactive are automatically barred from claiming social assistance because they are automatically treated as not having sufficient resources at the point of claim. Moreover, the Upper Tribunal has suggested that ‘sufficient resources’ means sufficient to provide for the migrant’s family for five years; a migrant cannot claim to have had sufficient resources for a short period of time between jobs if those resources would not have lasted for five years.

In short, the Court should be wary of following the AG’s lead in backing off from the apparently prohibited area of UK welfare benefits quite so hastily. The Regulation’s personal and material scope, and purpose, cannot simply be ignored or modified, nor can the Directive be transformed into an all-encompassing, higher principle, through pro-Member State judicial activism. The right to reside test adds conditions to the application of the Regulation’s provisions, and it does so in a directly discriminatory way. The Court must address these points honestly; if it is prevented from doing so by the political wind – or if it too conjures up a default forcefield around benefits regardless of type, and gives licence to ‘inevitable’ discrimination – the ramifications will tell not only upon claimants, their children, the vanishing strands of EU citizenship and the obstructed freedom to move, but also upon the Court’s credibility.

The European legal framework on hate speech, blasphemy and its interaction with freedom of expression

Nota Bene : At the request of the European Parliament LIBE committee, this study provides an overview of the legal framework applicable to hate speech and hate crime on the one hand and to blasphemy and religious insult on the other hand. It also evaluates the effectiveness of existing legislation in selected Member States and explores opportunities to strengthen the current EU legal framework, whilst fully respecting the fundamental rights of freedom of expression and freedom of thought, conscience and religion. The study also provides the European Parliament with guidelines on dealing with hate speech within the EU institutions. Link to the full study (446 pages) AUTHORS (*)

EXECUTIVE SUMMARY

Hate speech and hate crime incidents, including those committed online, are on the rise in Europe1, despite the existence of a robust legal framework. This study provides an overview of the legal framework applicable to hate speech and hate crime, as well as to blasphemy and religious insult. It also evaluates the effectiveness of existing legislation in selected Member States and explores opportunities to strengthen the current EU legal framework, whilst fully respecting the fundamental rights of freedom of expression and freedom of thought, conscience and religion. The study also provides the European Parliament with guidelines on dealing with hate speech within the EU institutions.

Legal framework on hate speech and hate crime

At the EU level the legal framework includes inter alia: Council Framework Decision 2008/913/JHA (CFD)2 (requiring Member States to penalise the most severe forms of hate speech and hate crime); and the Audiovisual Media Services (AMSD)3 and Electronic Commerce Directives (ECD)4 (controlling racist and xenophobic behaviours in the media and over the internet). It is important to view the EU measures aimed at addressing racism and xenophobia in the context of the broader EU legislative framework. Instruments aimed at supporting victims of crime and antidiscrimination measures are of particular relevance in this respect. These include Directive 2012/29/EU5 (Victims’ Support Directive) and the EU’s equality and anti-discrimination legislation (e.g. Directive 2000/43/EC6 (the Racial Equality Directive)). The Racial Equality Directive is complemented by other antidiscrimination legislative instruments such as Directive 2000/78/EC7 (the Employment Equality Directive) and Directives 2004/113/EC and 2006/54/EC8 (the Equal Treatment Directives). The EU also provides its support in practice by financing projects aimed inter alia at fighting hate speech and hate crime (for example under the Europe for Citizens Programme 2014-20209 or the Rights, Equality and Citizenship Programme 2014-202010).

The current study, developed on the basis of information gathered through seven national studies (Belgium, Germany, Greece, France, Hungary, the Netherlands and Sweden), has revealed some major drawbacks of the current legal framework applicable to hate speech and hate crime:

Shortcomings related to the transposition of the CFD include its incomplete transposition. Gaps in transposition mainly arise in connection with Article 1(1)(c) and 1(1)(d) of the CFD requiring the penalisation of the condoning, denial or gross trivialisation of genocide, crimes against humanity and war crimes and of Nazi crimes, respectively. To ensure effective protection against the most severe forms of hate speech and hate crime, it is recommended that the European Commission (EC) initiates infringement proceedings against Member States failing to transpose the CFD. Another issue derives from the transposition of the protected characteristics (grounds upon which hate speech and hate crime are prohibited) set out in the CFD, the AMSD and the ECD. As a general rule, Member States’ legislation refers to characteristics beyond those required by the CFD, the AMSD and the ECD. Member States have not taken a harmonised approach in this respect, thus the list of protected characteristics varies from Member State to Member State. Therefore an ambitious review of existing EU law might be necessary.

The use in practice of the CFD, the AMSD and the ECD is hindered by similar factors. Member States fail to collect sufficient reliable data on hate speech and hate crime incidents, which hinders the monitoring and assessment of the scale of the problem. This mainly results from the fact that data collection related competences are often divided between more than one authority, whose data collection efforts are not harmonised. To overcome the existing data gap, Member States with less developed or harmonised data collection methods could be encouraged to learn from Member States with good practices in place. The underreporting of hate speech and hate crime incidents by victims also hinders the understanding of the scale of the problem. Member States could be encouraged to raise awareness of the means of reporting incidents or to facilitate reporting through alternative means, such as anonymously, through the internet or victim support organisations.

The absence of shared understanding by practitioners of the applicable legal provisions seems to be an issue across the globe. The provision of clear guidance to practitioners, for example through awareness raising materials or training programmes, is therefore needed. These tools should provide practitioners with the skills necessary to duly investigate, prosecute and adjudicate hate speech and hate crime incidents.

In addition, applicable rules often fail to cover the liability of operators for the publication of hate content by bloggers or users of social media sites. The liability of bloggers and users of websites is often regulated; however these individuals are sometimes difficult to trace back, moreover it is often difficult to prove their motivation. The situation is an issue of concern given that internet remains a critical tool for the distribution of racist and hateful propaganda. To overcome the potential impunity of offenders it is recommended to regulate the liability of operators, thereby encouraging them to better control the content of blogs and social media websites. Alternatively Member States could reinforce their efforts of monitoring the content of websites. This however, should be done in a manner ensuring the sufficient respect of freedom of expression.

In most Member States, no concerns have arisen regarding the unnecessary limitation of freedom of expression by hate speech legislation, or vice versa. France constitutes an exception in this respect where debates over the borderline between the protection of human dignity and the freedom of expression have recently reignited, when the French Government announced its new campaign against online hate speech. Some considered the French measures as too restrictive of the freedom of expression11. Guidance on where the borderline stands between the two fundamental rights is found in the case law of the European Courts of Human Rights (ECtHR). The ECtHR has ruled that in a democratic society, which is based on pluralism, tolerance and broadmindedness, freedom of expression should be seen as a right extending also to information and ideas that might offend, shock or disturb others. Any limitation of the freedom of expression must be proportionate to the legitimate aim pursued12. Member States could also be encouraged to sign and ratify the Council of Europe’s (CoE) Additional Protocol to the Convention of Cybercrime13, which gives due consideration to freedom of expression, while requiring the criminalisation of racist and xenophobic acts committed online.

Finally, the absence of one comprehensive policy dealing with hate speech and hate crime is itself a matter that should be addressed. This could be addressed through the adoption of a comprehensive strategy for fighting hate speech and hate crime. The Strategy could define concrete policy goals for the Member States, targeting the most severe forms of hate speech and hate crime, including online crime. These policy goals could be set in light of the most important factors hindering the application of hate speech and hate crime legislation in practice. These factors, as explained in details above, include inter alia the insufficient transposition of applicable rules, the inadequate knowledge of practitioners of the rules applicable to hate speech and hate crime, the insufficient data collection mechanisms in place and the existence of severe underreporting. The Strategy should ensure the sufficient respect of freedom of expression and acknowledge that hate speech and hate crime are present in all areas of life (e.g. politics, media, employment).

Legal framework on blasphemy and religious insult Continue reading “The European legal framework on hate speech, blasphemy and its interaction with freedom of expression”

IMPROVING THE LEGISLATION FOR LABOUR MIGRATION IN THE EUROPEAN UNION (a Study for the EP)

FULL STUDY ACCESSIBLE HERE 

AUTHORS: Prof. Iván Martín Dr. Anna di Bartolomeo Prof. Philippe de Bruycker, Géraldine Renaudiere Dr. Justyna Salamońska Prof. Alessandra Venturini (Migration Policy Centre, Robert Shuman Centre for Advanced Studies, European University Institute)

The paradox between the need for international labour migration to counter the impending demographic crisis in Europe and the lack of commensurate policy instruments to attract and integrate labour migration from third countries into the EU is one of the key strategic issues for Europe. Upon request by the LIBE committee, this research paper reviews the social and economic context of EU international labour migration policy, the status of relevant EU legislation and the available policy options from a comprehensive labour market perspective, as well as their feasibility. These options for opening up legal labour migration channels to the EU should be considered in the framework of the ongoing discussion over the European Agenda on Migration.

EXECUTIVE SUMMARY

Attracting international labour over the medium- to long-term is a crucial strategic issue for the European Union: demographic challenges, enhanced European global competitiveness, sustained European growth and the survival of welfare systems over the next decades, all depend on it.

However, EU labour migration policy has received very little attention from policy-makers, media and the public in general, even in the framework of the recent proposal for a European Migration Agenda.

As a matter of fact, the EU has no comprehensive set of policy instruments to cope with the international labour required by its labour markets. There are several reasons to undertake the development of a more coherent and more comprehensive legal labour migration policy framework in the EU:

  • Non-economic migrants (family reunification, refugees and foreign students) amount to between two thirds and three quarters of all third-country nationals entering the EU labour market;
  • Labour migration policy is the only instrument allowing the selection of skilled migrants with the qualifications and skills required by European labour markets;
  • Effective legal labour migration channels are a necessary component of any strategy to fight irregular labour migration;
  • Legal migration is a key component of international bilateral migration policy dialogues between the EU and its partner countries, in particular Mobility Partnership with Neighbourhood countries. A coherent EU labour migration policy framework is required to integrate this issue into policy dialogues.

As a consequence, an EU labour migration policy framework should be an integral part of the emerging EU labour market and employment policies.

The political sensitiveness of immigration policy and the exclusive competence of Member States to decide the volume of admissions of third-country nationals seeking work are two major constraints on any policy initiative in this field.

Structure and main conclusions

This paper first reviews available evidence on the need for labour migration from third countries to the European Union. Today, in most Member States high unemployment and underemployment levels coexist with substantial labour shortages as perceived by employers. Whereas there is not an overall quantitative labour shortage for the whole EU, several studies find the existence of qualitative labour market shortages for specific skill levels, sectors or occupations, in particular for low-skilled occupations. Highly-skilled profiles are, instead, needed only in a limited number of occupations and countries. Accordingly, any strategy addressing labour needs in the EU – including highly-skilled migration schemes – should be geared to national labour markets’ needs and be strongly sector-oriented.

By looking at the different forecasts available, it can be seen that international migration is poised to play a major role in filling the EU’s labour market needs.

Accordingly, redesigning pro-immigration policies should be a complementary response to current and future European labour supply dynamics.

This paper, also, reviews the gradual development of an EU-wide legal framework on economic migration and its current status. After a 2001 attempt to adopt a comprehensive approach to economic migration to the EU, EU legislation has opted for a “category-by-category” approach. To date this has focused on students and researchers, highly-qualified migrants, seasonal workers and intra-corporate transferees. There is also a proposal recasting the Directives on foreign students and on researchers that has not yet been adopted. Assessments of the implementation of the Researchers Directive (2011) and the Blue Card Directive on highly-qualified migrants (2014) show low rates of use. In both cases, as with the Seasonal Workers Directive, the wide powers of discretion retained by Member States and insufficient promotion of the existence of new rules undermines the potential of directives.

Beyond the conditions of admission, the intra-EU mobility of third-country nationals remains a key component of EU labour migration policy and one of the biggest failures in European immigration policy. Overall, the EU labour migration system lacks effective coordination mechanisms between Member States for policy implementation at the EU level.

The paper, next, looks at the existing evidence for the impact of EU migration policies on migration flows in the labour market, as well as the integration challenges posed by the arrival of third-country nationals. Available data do not allow for a thorough assessment of the impact and effectiveness of immigration policies on migrant flows and – especially – on migrant composition in terms of reasons for entrance: family reunification beneficiaries, refugees, workers and students. Only very limited quantitative studies have been conducted in a systematic and comparative way at the EU level. This lack of data and research severely limits our ability to understand and design an evidence-based EU labour migration policy.

However, the low level of use of EU labour migration policy tools, such as the Researchers Directive or the Blue Card Directive, suggests that the impact of EU labour migration policy on migratory movements is very limited.

Empirical evidence reveals that migrants do not integrate into the labour market to the same extent as native workers. They have lower wages and are more likely to be unemployed than native workers with the same characteristics.

Regarding the proposal for a European Agenda on Migration presented by the European Commission on 13 May 2015, the chapter on “A new policy on legal migration” does not contain major novelties in relation to the current EU labour immigration regime. The proposals lack a clear vision of future EU labour migration policy and its integration with labour market and employment policy. They do not build a comprehensive and coherent policy set and they do not make up for the shortcomings of current EU labour migration policies. Overall, they are not suited to respond to the identified and projected labour needs of the European Union over the medium- to long-term. However, they open a unique opportunity to discuss EU labour migration policy: this opportunity should not be wasted.

Main recommendations

In this regard, the paper calls for a comprehensive labour market vision of EU economic migration regime. The current piecemeal, category-specific approach to legal labour migration at the EU-level does not respond to the needs of EU labour markets, which are subject to a process of gradual unification.

Indeed, EU labour migration policy should be an integral part of EU labour market policy. As such, it should incorporate measures facilitating the labour market integration of all flows of third-country nationals into the EU labour markets. This would include not only economic migrants entering the EU labour market with a work permit, but also all third-country nationals ultimately accessing European labour markets. Here there are, also, family reunification beneficiaries, asylum-seekers and foreign students.

An operationalization of the EU preference principle is crucial to ensuring the smooth implementation of any EU-wide labour migration scheme and the articulation between international migration and the intra-EU mobility of EU nationals.

Social partners and social dialogue mechanisms are a necessary component of any EU labour migration initiative. They both define an EU labour migration policy responding to the actual needs of the labour market and defuse misrepresentations of migrants in political discourse and public opinion.

A public information and communication strategy on the realities of migration and the need for a comprehensive labour migration policy at EU level should be an integral part of any policy debate in this field, given the strong anti-immigration attitudes in wide sectors of public opinion in many Member States.

Legal labour migration opportunities to the EU should be integrated into EU migration agreements with third countries (such as Mobility Partnerships), as well as mechanisms to facilitate the labour and skills matching for migrant workers from those countries. This would allow the articulation between EU labour migration policy and EU external cooperation in this field.

More precise and disaggregated migration statistics should be collected at the EU level, and the current Commission Annual Report on Immigration and Asylum could be transformed into a fully-fledged EU-wide migration policy review mechanism.

Last, but not least, more research and better production of data are crucial in any effective evidence-based labour migration policy at the EU level. More research is needed, in particular, in the following areas:

  • Labour market integration of non-economic migrants;
  • Patterns of intra-EU mobility of third-country nationals legally residing in the EU;
  • Mechanisms to better match the profile of labour migrants to the needs of the EU labour markets;
  • Foreign students graduating in EU education institutions should have some opportunity to access EU labour markets, enhancing thus the attractiveness of the EU destination, and an EU Traineeship Programme for third-country nationals could be a building block to facilitate the smooth integration into of third-country nationals with the required skills.
  • More generally, the recognition and certification of qualifications and skills obtained in third countries by third-country nationals should be made easier and progress towards an EU-wide recognition system should be envisaged.The actual implementation and working of labour market tests in different EU Member States.Policy options to open new avenues for legal labour migration to the EUThe paper briefly reviews a series of concrete policy options for widening the legal channels for access to the European labour market in response to identified labour market needs. The analysis of existing options allows some conclusions on the right mix of policy instruments to integrate into a comprehensive labour market approach. The main objectives would be the following: ensuring a more efficient international labour matching of migrant workers; optimizing the labour force already present in the EU; fitting legal migration channels to the needs of the European labour markets; and ensuring the availability of a sufficient pool of potential labour migrants for employers. In terms of policy instruments, an analysis of existing options suggests the following conclusions:
    1. Improving labour matching within and outside the EU
    • An EU-wide Labour Market Information System and an EU labour market needs a forecasting system integrating migration flows of non-economic migrants. Both are the basis of any effective, evidence-based labour migration policy at the EU level. The former can be used to facilitate international labour matching for third-country nationals and to operationalize the principle of EU preference and to ensure a better matching of labour migration policy outcomes to the actual needs of EU labour markets.
    • Current EU and Member States job intermediation mechanisms (notably public employment services matching systems) could be extended to third country nationals, in particular through partnerships with public employment services in countries of origin. An obvious step there would be to extend the European Job Mobility Portal, EURES, to third countries, in particular Neigbourhood countries in the framework of Mobility Partnerships.

    . The role of private placement agencies in international labour migration matching should be enhanced and regulated, for instance through the development of a system of certified international recruitment agencies.

    1. Optimizing the labour force already present in the EU
    • The labour market integration of non-economic migrants has to be
      supported      , first by getting a better knowledge of their skills and facilitating
      changes in migratory status;

    . The intra-EU mobility of third-country nationals legally working in EU Member States should be facilitated; and the targeted regularization of irregular migrants for whom there is labour market demand should be incentivized.

    1. Fitting legal migration channels to the needs of the European labour markets

    . The ongoing reform of the EU Blue Card should impose fewer costs on migrants and employers and grant more rights, in particular to intra-EU mobility, to Blue Card holders.

    • Targeted and occupation-specific job search visas might be a more effective instrument to match EU labour migration policy to EU labour market needs than supply-driven “expression-of-interest” system, as suggested in the European Agenda on Migration.
    1. Extending the pool of potential labour migrants for employers
      • Foreign students graduating in EU education institutions should have some opportunity to access EU labour markets, enhancing thus the attractiveness of the EU destination, and an EU Traineeship Programme for third-country nationals could be a building block to facilitate the smooth integration into of third-country nationals with the required skills.
      • More generally, the recognition and certification of qualifications and skills obtained in third countries by third-country nationals should be made easier and progress towards an EU-wide recognition system should be envisaged.

EU CITIZENS’ ACCESS TO BENEFITS: THE CJEU CLARIFIES THE POSITION OF FORMER WORKERS

Published on EU LAW ANALYSIS on Tuesday, 15 September 2015

by Steve Peers

Today’s CJEU judgment in Alimanovic clarifies again the meaning of the EU law rules on the thorny issue of EU citizens’ access to benefits in another Member State. Like last year’s judgment in Dano (discussed here), it takes a more restrictive approach than suggested by the Court’s prior case law. However, like that prior judgment, today’s ruling leaves some issues open. I will discuss in turn the judgment itself, the impact on EU citizens’ access to benefits, and the UK government’s plans to renegotiate the country’s EU membership.

As a starting point, on the issue of EU citizens’ access to benefits, it is important to make distinctions as regards three issues: (a) the status of the person applying for the benefit ((i) not economically active; (ii) first-time job-seeker in the host State; (iii) previously employed in the host State; (iv) currently in work; (v) permanent resident); (b) the type of benefit at issue (social assistance, or concerning access to the labour market); and (c) whether the dispute concerns access to benefits or expulsion of the person concerned.

The judgment

The Alimanovic case concerns a Swedish woman and her daughter who had worked in Germany briefly, then lost their jobs. They sought a particular benefit in Germany, and the national court asked the CJEU if they were entitled to it.

First of all, the Court reiterated and expanded on what it had said in Dano: the benefit in question was a ‘social assistance’ benefit, not a benefit relating to labour market access. This distinction is important because the EU citizens’ Directivestates that access to ‘social assistance’ benefits can be denied to first-time job-seekers, for as long as they are seeking work, and to all EU citizens during their first three months of residence. Furthermore, the Court’s previous case law (interpreting the Treaty rules on free movement of workers) states that first time job-seekers were entitled to benefits relating to labour market access, but not to social assistance benefits. The Court references that case law obliquely in the Alimanovicjudgment, but does not either reaffirm or denounce it; it should be noted that a case about job-seekers’ access to this same benefit is pending (Garcia-Nieto: see the Advocate-General’s opinion in that case here).

Secondly, the Court then turned to the question of whether EU citizens who were previously briefly employed in the host State could be denied social assistance benefits. The previously employed are not one of the two categories of people specifically excluded from equal treatment to social assistance benefits by the citizens’ Directive; but that does not necessarily mean that they have access to those benefits.

To determine whether they had access to those benefits, the Court interpreted the equal treatment rule in the Directive, which states that equal treatment applies to all those EU citizens ‘residing on the basis of this Directive’ and their family members (leaving aside the exclusions which were already mentioned, as well as other exclusions in the Treaties or other EU legislation). So were the two benefit claimants residing on the basis of the Directive?

The Court ruled that they were not still covered by the Directive as former workers, since the Directive says that those who work in the host State for less than one year (as in their case) retain ‘worker’ status for at least six months after becoming unemployed. After that point, a Member State can (as Germany did) terminate their worker status, which means (unless they have another basis to stay, which was not relevant in this case) they are no longer covered by the equal treatment rule, and lose access to social assistance benefits. The national court also took the view that they could be classified as first-time job-seekers, although the Court pointed out that in that case, the Directive expressly permits Germany to refuse access to social assistance benefits.

Next, the Court distinguished prior case law which requires an individual assessment of whether an EU citizen could be expelled or is an ‘unreasonable burden’ on the social assistance system of the host State. In this case, no such assessment was needed, because the citizens’ Directive already took account of the individual position of workers. The specific period of retaining worker status set out in the Directive and national law ensured legal certainty, while ‘while complying with the principle of proportionality’. Finally, when considering whether there was an ‘unreasonable burden’ on national systems, the individual claim did not count: rather the total of all claims would be ‘bound to’ constitute such a burden.

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Meijers Committee : Promoting Intra EU labour mobility of international protection beneficiaries

Original published on the Meijers Committee (*) site

Summary : The Meijers Committee proposes to enhance the opportunities for employment of international protection beneficiaries across the EU by allowing them to work in another Member State after two years of legal residency and under more favourable conditions than current EU directives allow. This incentive for achieving economic independence corrects the current legal regime under which socioeconomic criteria play no role in sharing the responsibility for asylum-seekers and international protection beneficiaries. It also allows for greater personal freedom of the people concerned and gives them a better chance of building a stable future. The proposed measure draws largely from that existing framework in terms of rights and obligations of individuals and Member States.

    1. Introduction

The Council of the EU is currently discussing new approaches to sharing the responsibility for asylum seekers and international protection beneficiaries among Member States. The Meijers Committee advises that these discussions should move beyond the issue of distributing asylum seekers and also explore the possibilities of enhancing intra-EU movement for persons who have been granted asylum.
In this note, the Meijers Committee proposes to allow international protection beneficiaries recognised in one Member State to take up a confirmed job offer in another Member State.
Granting beneficiaries of international protection free movement within the EU on objective conditions of having work and not becoming a burden on the social assistance system of another Member State contributes to the economic dynamism of the Union and helps relieve the pressure on those Member States whose asylum systems are particularly burdened and where socioeconomic conditions are generally less then favorable. It also enhances the prospects that the beneficiaries of international protection will better integrate by increasing their economic opportunities.

Finally, it stresses that these third-country nationals may be an asset to the EU rather than a burden or a problem.

To that purpose, the Meijers Committee proposes to apply elements of the free movement regime for EU workers to international protection beneficiaries and to complement these with certain conditions which have already been worked out in the regime for conditional labour mobility of international protection beneficiaries who have acquired EU long-term resident status and other relevant EU instruments. This note sets out the main features of such a measure.

2. Subject of the proposal

Introduce a supplementary measure to the existing system of distribution of asylum seekers and international protection beneficiaries or to a possible quota system, which permits international protection beneficiaries recognised in one Member State to take up a confirmed job offer in another Member State. This allows a distribution of beneficiaries of international protection between Member States on the basis of employer’s needs and the economic activities of third-country nationals.

The beneficiaries may gain a confirmed job offer in a second Member State by looking in EURES  or by using his or her right to travel up to three months within a single period of six months in the Schengen area. Most likely the people involved will look for work in Member States where family or contacts reside.
Permit vacancies in other Member States be taken up by third-country nationals already lawfully in the EU, rather than introduce new third-country nationals from outside the EU.
Avoid or diminish long-term unemployment, dependence on social benefits or irregular employment in the Member State that granted international protection by granting the beneficiaries conditional mobility within the Union.

3.Existing framework for labour mobility within the EU

There are at present several EU regimes for labour mobility for different categories of persons:

  • Free movement of EU workers and their Non-EU family members under Directive 2004/38 (Citizenship).
  • Conditional labour mobility of third-country nationals who acquired the status of an EU long-term resident in one Member State by allowing them to accept a job in another Member State under Directive 2003/109 (Long Term Residents). The latter State may refuse a work permit and admission during the first year on labour market grounds. Since 2013, beneficiaries of international protection have been covered by this Directive on the basis of Directive 2011/51.
  • Directive 2009/50 (Blue Card) for highly qualified workers from outside the EU.
  • Directive 2014/66 (Intra Corporate Transfer) for third country nationals.
  • Proposal to recast and merge the Students and Researchers Directive (COM(2013) 151 final), including a period for a third-country national to search for employment after graduation from a European education institute.

Although Directive 2011/51 has provided international protection beneficiaries with a right to reside in a second Member State to exercise an economic activity, this right is subject to strict conditions. It is only acquired after five years of lawful residence in the first Member State.

Further, the second Member State may, during the first year, apply a labour market test, under which preference may be given to Union citizens and third-country nationals who are legally resident and receive unemployment benefits in the second Member State. However, there are good reasons to allow free movement of international protection beneficiaries on more favourable terms.
Other third-country nationals are normally only admitted to a first Member State if they meet conditions of having work, resident family members with sufficient income, or have been admitted as a student, in short because of their socioeconomic bond with the destination country. International protection beneficiaries, on the other hand, often do not have self-evident bonds with the first Member State due to the nature of their residence (asylum) and the Dublin criteria for allocating asylum seekers.
The measure proposed by the Meijers Committee would help correct this effect.

4.Growing experience with labour mobility of third-country nationals within the EU

Actual, large-scale use of the Long-term residents Directive 2003/109 started only five years after the directive had to be implemented in national law of the 25 Member States bound by it.
Italy and Spain had both issued permits to more than 1.8 million EU long-term residents by the end of 2013. Mobility to another Member State commenced only recently. Germany issued 1,500 residence permits to third-country nationals who had acquired the EU long-term resident status in 2012, and 3,000 in 2013. At the end of 2013 Germany had issued more than 5,500 residence permits to third-country nationals who had acquired the EU long-term resident status in another Member State, and at the end of 2014 almost 10,000 such permits had been issued, mainly to third-country nationals arriving from Italy, Slovenia, Spain and the Czech Republic.1

5. Legal elements

Is there a legal basis in the Treaties?
Yes, Article 78(2)(a) TFEU obliges the Union to provide a uniform status of asylum for nationals of third countries, valid throughout the Union. The exception of Article 79(5) TFEU (“Member States may determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work”) does not apply, since the third-country nationals are already lawfully resident in the EU.

 Does the proposal satisfy the subsidiary requirements?
The legal position of international protection beneficiaries regarding labour mobility is already regulated by Directive 2011/51, provided they are long term residents pursuant to Directive 2003/109. The proposed mobility between Member States requires a common action. The EU is currently looking for a common solution to the question of responsibility for asylum seekers and international protection beneficiaries. This measure would address part of that question.

 Is this proposal proportionate?
The proposed measure is simple and relatively easy to achieve: it requires a limited amendment of the existing legal framework, which consists primarily of directives or a short new directive. The competence to check whether the   proposed employment conditions are   in conformity with national law remains with   Member States.

 What should the personal scope be?
Given the similarity of their status, both refugees and subsidiary protection beneficiaries should be covered. Beneficiaries of forms of national protection cannot be covered by an instrument under EU law as there is no legal basis for such in the TFEU. But they could be covered on the basis of national law of the second Member States.

 What should the personal scope be? (II)
For workers only. The right to move arises only if a labour agency of the second Member State confirms the existence and conditions of the job offer and that job provides sufficient resources for the third-country national to sustain himself, without recourse to social assistance in the second Member State.

When can an international protection beneficiary apply for a job in another Member State?
After a minimum of two years of lawful residence in the first Member State, rather than the five years under the revised Directive 2003/109. In those two years the beneficiaries will have an opportunity to settle in a Member State and, if necessary, supplement their professional qualifications. Moreover, this waiting period reduces the chances that the protection status is granted primarily to allow onward mobility within the EU.

Is transfer of international protection status necessary?
The proposal requires no rules on automatic transfer of international protection between Member States, similar to Directive 2011/51 revising Directive 2003/109.

What terms regarding health insurance apply?
Health insurance coverage maybe be required by the second Member State, similar to Article 15(2)(b) of Directive 2003/109.

Are integration requirements allowed?
No integration conditions before admission to the second Member State. Such conditions are also absent from the Qualification Directive 2011/95.

6.Rights in the second member state

Protection against refoulement
Protection status is granted on the basis of similar rules as in Directive 2011/51. Similarly, the rules of Directive 2011/51 on protection against expulsion to third countries, the right to return to the first Member State until long-term resident status in the second Member State is obtained, and the concomitant obligation of the first Member State to take the third-country national back will apply.

Equal treatment
The equal treatment clause of Article 11 of Directive 2011/98 (Single Permit) will apply automatically to these third-country nationals admitted to employment.

Family reunification
Family reunification should take place on the basis of the same rules as Article 16 of Directive 2003/109, i.e. if already reunited in the first Member State, admitted family members may accompany or join; if not yet reunited in the first Member States, the rules of Directive 2003/86 apply, such as a residence permit for at least one year and sufficient income.

Public assistance
No right to public assistance during the first three years, and after that transitional period access to public assistance as provided in Article 11 of Directive 2003/109.

Recognition of professional qualifications
Recognition of professional qualifications acquired in another Member State by the second Member State should take place on the basis of a regime similar to Directive 2005/36.

Consequences of dismissal or unemployment
The worker will be permitted to look for another job and is entitled to equal treatment on the basis of national law concerning unemployment benefits in accordance with the Single Permit Directive 2011/98. In case the worker complies with the conditions of Directive 2009/50 on entry and residence of third-country nationals for the purposes of highly qualified employment he may, in accordance with Article 10(2) of that directive, apply for a Blue Card in his Member State of residence or in another Member State. Before the worker has acquired the long-term residence status in the second Member State, the first Member State will be obliged to take the third-country national back if entitlement to unemployment benefits ends and no new job is found.

7.Risk that Member States grant asylum more often

The Meijers Committee has no reason to expect that increased possibilities of free movement will encourage Member States to grant asylum more often, because i) the right to move to another Member State is conditioned on two years of lawful residence in the first Member State, ii) the right only accrues to international protection beneficiaries who find work in another Member State, and iii) the first Member State remains responsible for taking the person back if the conditions for residence in the second Member State are no longer fulfilled until long-term resident status in the second Member State is obtained.

NOTE
1 See Bundesministerium des Innern, Migrationsbericht 2013, p. 100ff and reply of the German government of April 2015 (no. 4/132) to a written parliamentary question in the Bundestag.

About
The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Anti-discrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation. The Meijers Committee is funded by the Dutch Bar Association (NOvA), Foundation for Democracy and Media (Stichting Democratie en Media) the Dutch Refugee Council (VWN), Foundation for Migration Law Netherlands (Stichting Migratierecht Nederland), the Dutch Section of the International Commission of Jurists (NJCM), Art. 1 Anti-Discrimination Office, and the Dutch Foundation for Refugee Students UAF.

Contact info: Louis Middelkoop Executive secretary post@commissie-meijers.nl +31(0)20 362 0505

Please visit www.commissie-meijers.nl for more information.

WHAT IF A REFUGEE ALLEGEDLY SUPPORTS TERRORISM? THE CJEU JUDGMENT IN T

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 24 June 2015)

by Steve Peers

What happens if a refugee allegedly supports terrorism? The most obvious answer is that the person concerned might be excluded from getting refugee status in the first place, in accordance with Article 1.F of the Geneva (UN) Convention on Refugees, as reflected in the EU’s qualification Directive and interpreted in the CJEU’s B and D judgment of 2010. However, the situation is more complicated if the person already has refugee status, and his or her alleged support for terrorism begins or comes to light only later. This issue was addressed for the first time in today’s CJEU judgment in T.

Background

The qualification Directive offers three possible responses to a situation like this.

First of all, a Member State may revoke refugee status where there are ‘reasonable grounds for regarding [a refugee] as a danger to the security of the Member State in which he or she is present’, or where the refugee was ‘convicted by a final judgment of a particularly serious crime’ so ‘constitutes a danger to the community of that Member State’.

Secondly, it is possible to refoule a refugee (ie return the refugee to an unsafe country) on the same two grounds (which are also the exceptions to non-refoulement set out in the Geneva Convention), if that is not ‘prohibited’ by Member States’ international obligations. In that case, Member States may revoke or refuse to renew the refugee’s residence permit.

Finally, Member States must issue refugees with a residence permit and renew it, ‘unless compelling reasons of national security or public order otherwise require’.

Also, a Member State is obliged to revoke refugee status if the refugee ‘should have been’ excluded from refugee status in the first place, but presumably this only applies where the activity justifying exclusion took place before the refugee status was granted. All of the same rules apply to the parallel status of ‘subsidiary protection’, which exists for persons who don’t qualify for refugee status but who otherwise need international protection because they are fleeing torture, the death penalty or a civil war.

Judgment

This case concerned a Turkish national who moved to Germany back in 1989 and obtained refugee status there in 1993, on the basis of his activities in support of the PKK, the Kurdish group which Turkey (and subsequently also the EU) regards as a terrorist organisation. However, those links later led to a conviction for supporting terrorism, due to his collection of money for the PKK and distribution of PKK literature. His residence permit was revoked but he retained refugee status, and he was not expelled from the country. Nevertheless, he still challenged the revocation of his residence permit.

The CJEU’s judgment considers the second and third of the two issues above: refoulement (which might lead to the loss of a residence permit) and the loss of the residence permit as such. First of all, the Court explains the relationship between these two overlapping rules. If the criteria to refoule a refugee are satisfied, a Member State can either (a) refoule the refugee; (b) expel the refugee to a safe country; or (c) allow the refugee to stay. In the event that Member States can refoule the refugee, then they can also revoke a residence permit. But conversely, if the criteria to refoule the refugee are not satisfied, then the Member State cannot withdraw a residence permit on this ground.

In that case, the Court ruled, the question arises whether the rules on granting residence permits apply. Those rules don’t expressly refer to revoking a permit which has already been issued, but the Court ruled that this possibility was implicit.

The Court then moved on to interpret the two sets of grounds for loss of a residence permit at issue in this case: the ‘reasonable grounds’ that the refugee is a security risk, and the ‘compelling reasons of national security or public order’. These concepts aren’t further defined in the Directive, and the language versions of the Directive differ. So the Court proceeded to interpret these rules in the overall context of the Directive – protecting human rights and developing a common policy. In the Court’s view, refoulement of a refugee is a ‘last resort’ in the event that there is no other option to protect national security or the public. Since it could have a ‘drastic’ impact on the refugee, it was subject to ‘rigorous conditions’.

In contract, the mere loss of a residence permit did not lead to refoulement, and so the threshold for the application of the relevant rules was lower. The rules on loss of a residence permit ‘only’ apply where the refugee’s actions ‘cannot justify loss of refugee status, let alone the refoulement of that refugee’, and so did not ‘presuppose the existence of a particularly serious crime’.

So does support for a terrorist group meet the threshold to be one of the ‘compelling reasons of national security or public order’? The Court ruled that the concept should be interpreted consistently with the public security exceptions in the EU’s citizens’ Directive, because ‘the extent of protection a company (sic) intends to afford to its fundamental interests cannot vary according to the legal status of the person that undermines those interests.’ So terrorism is covered by that concept, and there must be a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Moreover, the EU has listed the PKK as a terrorist group, which is a ‘strong indication’ that must be ‘taken into account’. Since the CJEU had already ruled (in B and D) that terrorist acts could lead to exclusion from refugee status, it must follow that they could equally justify revocation of a residence permit.

But that was not the end of the matter. The national court has to go on to a second step, to consider whether the specific actions of a refugee in fact constitute support for terrorism so as to justify revocation of a residence permit. Not all forms of support for an organisation which the EU considers to be terrorist can lead to revocation of a refugee’s residence permit. As with the exclusion clause (see B and D), it was necessary to look at the individual’s behaviour, examining ‘in particular whether he himself has committed terrorist acts, whether and to what extent he was involved in planning, decision-making or directing other persons with a view to committing acts of that nature, and whether and to what extent he financed such acts or procured for other persons the means to commit them’.

In this case, Mr. T had participated in legal meetings, celebrated the Kurdish New Year and collected money for the PKK. The Court asserted that this ‘does not necessarily mean that he supported the legitimacy of terrorist activities’. Indeed, such acts ‘do not constitute, in themselves, terrorist acts’. The national court also had to consider the ‘degree of seriousness of danger’ Mr. T posed. It could take into account his criminal conviction but also had to consider that he was only sentenced to a fine. Also, the principle of proportionality (which the Court stated was not relevant when applying the exclusion clause, in B and D) was relevant here: the national court had to consider if Mr. T was still a threat to public security at the time the decision to revoke the permit was taken.

Finally, the Court ruled on the consequences of the loss of a residence permit. The person concerned retained refugee status and so was still entitled to all of the rights granted to a refugee, including access to employment, education, welfare, healthcare and housing. Although a clause in the preamble to the Directive stated that a residence permit could be made a condition of obtaining such benefits, the Court said that this clause was irrelevant since it was not reflected in the main text. Those rights could ‘only’ be restricted in accordance with the conditions in the Directive, and Member States ‘are not entitled to add restrictions not already listed there’. This was directly relevant to Mr. T, since Germany had indeed restricted his access to all of those benefits. But this is ‘incompatible’ with the Directive.

Comments

This was the first chance for the Court to rule on the status of refugees, ie the various benefits attached to refugee status, since its previous judgments on the qualification Directive have essentially concerned the definition of refugee or subsidiary protection status (or the linked issues of exclusion from or cessation of that status). Broadly speaking, the judgment does a good job clarifying the points which the Court set out to tackle – but inevitably the Court could not deal with every possible issue, and some of its answers raise further questions of their own.

First of all, the Court provides a useful clarification of the distinction between the non-refoulement rules and the rules on residence permits as such. The crucial point here is that the latter rules apply only when the former do not. While this makes the residence permit rules sound as if they have secondary importance, in fact the reverse is true. In practice, the residence permit rules are more important, since it is rarely if ever possible to refoule a refugee consistently with international obligations. This is because the case law on Article 3 of the European Convention on Human Rights (ECHR) makes clear that even if a person has done things awful enough to justify refoulement under the Geneva Convention, he or she cannot be removed to face a real risk of torture or inhuman or degrading treatment in violation of Article 3 ECHR – since that provision is not subject to any exception relating to the behaviour of the person concerned (or any other exception either). It was not necessary for the CJEU to rule on this point in the T case, since Germany was not seeking to remove him, but it would surely be willing to do so if the case arose (see the judgment in Abdida, discussed here, where the CJEU relied upon another strand of the Article 3 case law).

In the unusual event that refoulement might be possible, the CJEU’s ruling leaves some questions to ponder. It refers to the possible removal of a refugee to a safe third country. Presumably the criteria to determine the meaning of that concept are those in the asylum procedures Directive. It is also possible that the Court would be willing to rule on the interpretation of Article 32 of the Geneva Convention – which regulates the substance and procedure of the expulsion of refugees to safe countries (if the refugees are legally resident) – in this context. The CJEU might also be called upon to elaborate further what it means by saying that refoulement is a ‘last resort’ in the event that no other alternatives are available.

As for the main thrust of the Court’s ruling, on the ‘compelling reasons’ exception to the grant of residence permits, it is striking that the Court continues its recent trend of applying its case law on the EU citizens’ Directive to the ‘public policy’ clauses in EU immigration and asylum law. It did the same thing just a few weeks ago as regards the voluntary departure rules in the EU Returns Directive (see the Zh and O judgment, discussed here), and the broad wording of its judgment in T on this point suggests that all public policy clauses (they appear in swathes of EU legislation in this area) should have the same meaning. Having said that, the Court clearly accepts that the threshold for refoulement of a refugee is higher than for the normal public policy exception.

The Court also borrows most of its prior reasoning on the exclusion clause (with the addition of a proportionality element) to make clear that broad support of a group which the EU considers to be terrorist is not enough: there must be an active participation in violent acts or the funding of those acts. Presumably there must be a direct link with the funding of those acts, since the Court finds that Mr. T’s participation in collecting money for the PKK generally is not enough. Implicitly the Court shows little sympathy with recent EU and national moves against ‘radicalisation’ of Islamic communities (as very broadly defined), and it makes no reference to the Council of Europe measure (reflected in EU legislation) which criminalises ‘public provocation’ of terrorism. But nor does it refer to the countervailing case law of the European Court of Human Rights on freedom of speech, which requires States to allow the free expression of radical political beliefs and allows limits on that expression only where there is a direct incitement to commit violent acts. Nevertheless, the Court’s approach fits squarely into that latter line of case law.

Finally, the Court’s ruling on the consequences of loss of a residence permit are highly relevant, especially in Germany and any other Member States which do indeed make the receipt of benefits, access to employment et al dependent upon holding a residence permit. In effect, the judgment means that for many refugees the loss of a residence permit, even if justified, will have no real impact on their day-to-day life. It will only have an impact as regards journeys within the Schengen area (since holding a residence permit or long-stay visa is a condition of freedom to travel), or travels to non-Schengen and non-EU countries (since the criteria to revoke a residence permit also apply to the travel documents which refugees obtain from their host States in lieu of passports). It would also have an impact upon those refugees who do not yet have family living with them, since the EU’s family reunion Directive requires a third-country national to have a residence permit as a condition for family reunion. But that doesn’t matter to Mr. T, since he is already surrounded by his very large family in Germany.

INTEGRATION REQUIREMENTS FOR THIRD-COUNTRY NATIONALS: THE FIRST CJEU RULING

ORIGINAL PUBISHED ON EU LAW ANALYSIS

by Steve Peers

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

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

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

Judgment

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

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

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

Comments

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

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

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

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

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

Dublin III Regulation on asylum and unaccompanied minors

by Federica VIGNALE (Free Group Trainee)

Unaccompanied minors are “third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person […][i]. In the last years Europe has been facing massive flows of this particular category of migrants; in the whole 2014, on the basis of data provided to Eurostat[ii] by the Ministries of Interior and official agencies, a total of 16,265 unaccompanied children has been registered as asylum applicants in the countries applying the EU Regulation No 604/2013[iii] – the 28 EU Member States, as well as the four third-countries participating in Schengen (Iceland, Norway, Switzerland and Denmark). These figures, however, could be not representative of the real situation because many of unaccompanied minors “do not register with the authorities either because they are unable or afraid to do so or because they have been advised by family members, peers or smugglers to keep on the move to another destination”[iv]. Furthermore, “others are not able to contact the authorities because they are being controlled by their traffickers and are destined for sexual, labour or other exploitation in Europe”[v].

Given the specific vulnerability of children and their great exposure to risks – trafficking, sexual exploitation, slavery or servitude – stronger efforts shall be made to assure adequate protection of unaccompanied minors, especially in the early stages of the asylum procedure. In this respect, UNHCR highlighted that the serious problems encountered in the past were attributable to transfers between Member States: children became homeless or destitute because of the lack of accommodations following transfers, accommodation of children in facilities for adults or in detention due to the lack of mutual recognition of age assessment outcomes, delays in accessing the asylum procedure following the delays in the appointment of a guardian in the receiving MS[vi]. These transfers are linked to the determination of the Member State responsible for examining the application for international protection. In the case of unaccompanied minors, such rule is contained in article 8(4)[vii] of Dublin III Regulation – mentioned before – which provides that “[i]n the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interest of the minor“. This disposition has, however, some gaps and ambiguities because there is no legal certainty in respect of responsibility for examining an unaccompanied minor´s application, and currently it is object of an amending proposal that could lead to meet the need of fewer transfers.

Background

When, in June 2013, Dublin III Regulation was adopted, there was already at European level the awareness of the ambiguity of the disposition related to minors. The co-legislators, however, expressed in that occasion their intention to clarify that ambiguity once the CJEU had ruled on case C-648/11[viii], which concerned the interpretation of Article 6(2) of Regulation 343/2003[ix] – Dublin II – that corresponds to the current article 8(4) of Dublin III. On 6 June 2013 the Court of Justice ruled that:

“The second paragraph of Article 6 of Council Regulation (EC) N° 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 must be interpreted as meaning that, in circumstances such as those of the main proceedings, where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the “Member State responsible”.”

Therefore and in compliance with the Declaration of the European Parliament and of the Council attached to the Regulation[x], on the 26th June 2014 the European Commission presented an amending proposal[xi] “aimed at addressing the current ambiguity of the provision on unaccompanied minors who have no family, siblings or relatives on the territory of the Member States, by providing legal certainty in respect of responsibility for examining the application for international protection in such cases”.

The Commission proposal Continue reading “Dublin III Regulation on asylum and unaccompanied minors”

The EU’s Maternity Leave Directive: The Council secretly rejects the EP’s olive branch

30.3.15  The Council’s refusal to accept the EP’s olive branch and even start negotiations on a possible compromise (however unlikely that might be) is petty and vindictive

by Steve Peers, Professor of Law, University of Essex (Twitter: @StevePeers)

Back in 2008, the Commission proposed a modest amendment to the EU’s existing maternity leave Directive. The European Parliament amended the proposal so that there would be a significant extension in the duration and cost of maternity leave – namely 20 weeks on full pay. This attracted very little interest in the Council, and negotiations were deadlocked for years.

The incoming Commission in 2014 indicated that the EP and the Council had a few months to reopen negotiations on the proposal, or it would withdraw it. It appears that the EP then made some overtures to the Council to open negotiations to this end, although the documents setting out this willingness to negotiate (referred to in the Council document) do not seem to be publicly available.

According to the attached LIMITE document (obtained by Statewatch) large number of Member States in the Council have clearly rejected this willingness to negotiate, raising not only procedural objections against the creation of an ad hoc form of committee (although the Council endlessly creates new ad hoc negotiating bodies for its own purposes) but also substantive objections to holding any discussions at all with the EP on this issue. Presumably the proposal is now doomed – unless there is some last-minute new political initiative.

Frankly, no one comes out of this saga well.

Whether the EP’s far-reaching amendments were a good idea or not, it was obvious for years that the Council would never adopt them, and the EP waited until the eleventh hour before showing any sign of flexibility. Its principled rigidity will lead to less generous maternity for many women, who might have benefited from more modest amendments that could possibly have been agreed years ago.

For the Council, the refusal to accept the EP’s olive branch and even start negotiations on a possible compromise (however unlikely that might be) is petty and vindictive.

For the Commission, the offer to wait for the Council and the EP appears like a cynical passing of the buck, letting the co-legislators take the blame for the failure of the talks.

Why not take an active stance, suggesting possible compromise positions and expending some political effort in trying to bring the other institutions together?

And more broadly, the EU legislative process has failed here. Not just in the obvious sense that there is a failure to do a deal, or that the EP overplayed its hand to an almost cartoonish degree. It failed because of the skulking secrecy that infected the dying months of these (non-)negotiations.

As far I can see from its website, the EP’s women’s committee did not hold any public hearing on this proposal since the Commission issued its ultimatum. Its chair’s letter to the Council is not public (or at any event, it cannot be easily found). Surely this an important enough issue to engage the public? And the Council’s rejection of the EP’s apparent offer to negotiate is only ‘public’ because this document has been leaked.

The basic principles of democratic accountability mean that the Member States should account in public for their refusal to negotiate, and the EP should have disclosed its position and debated it in public. Perhaps the proposed changes to the maternity leave directive were doomed whatever happened – but they should have died with a public bang, not a squalid backroom whimper.