Eu Costless Movement, Immigration In Addition To Asylum Law: 2014 Inward Review

 

Steve Peers

Introduction

The number of the costless movement of European Union citizens, equally good equally immigration as well as asylum from non-EU countries, has inwards recent years transcend away i of the most contested issues inwards European Union law. This weblog post reviews the large number of legal developments over the concluding yr inwards these 2 fields, assessing firstly the controversies over European Union citizens’ costless movement rights as well as secondly the tensions inwards European Union immigration as well as asylum police describe betwixt immigration command as well as human rights as well as betwixt national as well as European Union powers. It’s the minute inwards a serial of weblog posts reviewing aspects of European Union police describe inwards the concluding year; the commence inwards the serial (on criminal law) tin last found here.

Free Movement Law

The representative police describe of the CJEU on European Union citizens’ costless movement inwards 2014 was dominated past times the themes of the limits to economical migration as well as equal treatment, inwards conjunction amongst European Union citizens’ right to identify unit of measurement reunion. On the commence point, the most prominent judgment of 2014 was the Dano ruling (discussed here), inwards which the CJEU took a to a greater extent than stringent approach than usual inwards ruling that an European Union citizen who had non worked or looked for piece of work had no right to insist upon a social assistance do goodness inwards the Member State that she had moved to.

As for the basic rules on qualification for European Union costless movement rights, the CJEU was non asked to dominion inwards 2014 on the Definition of European Union citizenship. However, a pending representative inwards the United Kingdom of Great Britain as well as Northern Ireland Supreme Court (discussed here) raises of import questions close the extent of European Union rules on the loss of national (and thus EU) citizenship. The acquisition of European Union citizenship also proved controversial, inwards the context of Malta’s sale of national (and EU) citizenship (discussed here).

Furthermore, European Union costless movement rights unremarkably entirely apply to those who have got moved betwixt Member States. In 2 linked judgments this leap (discussed here), the CJEU clarified exactly about of import exceptions to that rule, equally regards European Union citizens who have got moved to exactly about other terra firma to last amongst their identify unit of measurement members as well as returned, or who are cross-border workers or service providers. Next year, the CJEU volition farther clarify exactly about other of import exception to that rule: the Ruiz Zambrano scenario when the non-EU parent of an European Union citizen nestling is expelled to a 3rd country, as well as the European Union nestling has to follow, resulting inwards a de facto loss of their European Union citizenship. The CS as well as Rendon Marin cases both inquire the Court whether that representative police describe applies to cases where the non-EU parent has been expelled next a criminal conviction.

For those European Union citizens who do displace betwixt Member States, the CJEU delivered an of import judgment inwards the representative of Saint-Prix (discussed here), extending the concept of ‘former workers’ beyond the categories listed inwards the EU’s citizens Directive, to include also (under for sure conditions) cases of meaning women who gave upward their jobs earlier the baby’s birth.

This judgment concerned the continued access to equal treatment inwards welfare benefits which old workers enjoy. Indeed, a novel Directive on workers’ equal handling (discussed here) was adopted inwards 2014, aiming to ensure the effective implementation of such equal handling rights inwards practice. Next year, the CJEU volition last called upon inwards the Alimanovic representative to clarify whether the limits on European Union citizens’ access to benefits laid out inwards Dano also affect upon work-seekers, who have got previously had limited access to benefits linked to labour marketplace seat access. The Court volition also shortly dominion on students’ access to benefits in i lawsuit to a greater extent than inwards the representative of Martens, where at that spot has already been an Advocate-General’s opinion.

The number of European Union citizens’ right to identify unit of measurement reunion was repeatedly addressed throughout the year, amongst the CJEU taking a consistently liberal view. It ruled for a generous interpretation of ‘dependent’ identify unit of measurement members inwards Reyes (discussed here), as well as confirmed that separated spouses tin silent qualify for permanent resident status inwards Ogierakhi (discussed here). It also ruled inwards McCarthy (discussed here) that non-EU identify unit of measurement members of European Union citizens could non last champaign of study to a ‘family permit’ requirement to see the UK, but rather had to last exempt from the demand to obtain a visa if they care a residence bill of fare inwards the terra firma which they alive in. This judgment clarified that Member States could entirely claim that European Union citizens were abusing free movement rights inwards private cases. On this topic, the Commission produced a Handbook on the number of 'marriages of convenience' (discussed here). Next year, the Court volition last called upon to clarify the application of European Union police describe to divorces (Singh), as well as for the commence time, to same-sex relationships (Cocaj).

Finally, equally regards the number of derogations, the Court took a less generous see of cases involving criminal convictions, ruling inwards G and Onuekwere that fourth dimension spent inwards prison theatre inwards the host State did non count toward obtaining permanent residence status or the extra protection against expulsion that comes amongst 10 years’ residence.  

Of course, the benefits of European Union costless movement police describe are non uncontested. Throughout the year, the ground on the merits of these rules inwards the United Kingdom of Great Britain as well as Northern Ireland intensified, to the dot where Prime Minister David Cameron insisted that at that spot had to last a major renegotiation of these rules equally a fundamental characteristic inwards the renegotiation of the UK’s membership of the EU. As I pointed out at the fourth dimension (see give-and-take here), many of his demands volition last hard to agree, equally they would require Treaty amendment.  

Immigration as well as Asylum police describe

There were of import developments inwards all 4 areas of European Union immigration as well as asylum police describe inwards 2014: visas as well as edge controls; irregular migration; legal migration; as well as asylum.

Visa as well as borders

In the expanse of edge controls, the European Union adopted novel legislation on maritime surveillance inwards the leap (discussed here), next a judgment of the CJEU invalidating the prior Council implementing mensurate on the same subject. This Regulation contains rules on search as well as rescue, equally good equally maritime surveillance as well as the accountability of Frontex, the EU’s edge agency. But it does nada to ensure the accountability of Member States for cases of ‘push-backs’ (illegal render to the terra firma of root from the high seas) where Frontex is non involved. Nor does it address illegal refusal of entry for asylum-seekers at the external terra firma borders, equally inwards the representative of recent Castilian legislation applying to its North African enclaves.

To last fair, inwards recent years at that spot have got undoubtedly been far to a greater extent than cases of national operations which relieve migrants’ lives, inwards special the Italian Mare Nostrum performance of 2013-14. However, that performance was injure downwards starting inwards autumn 2014, as well as replaced past times a much to a greater extent than modest EU-led Operation Triton. It’s possible that to a greater extent than migrants volition drown inwards the Mediterranean equally a result.

The European Union prefers to focus instead on ever-increasing controls at the external borders. But the negotiations on the EU’s smart borders proposals dragged on throughout 2014, amongst no understanding on the relevant rules probable earlier 2016. As for CJEU representative law, the of import Air Baltic judgment confirmed (following the 2013 judgment inwards Koushkaki, regarding the visa code) that European Union rules on entry at the external borders are exhaustive, leaving no ease discretion to Member States. The Court’s other judgment inwards this field, on the EU’s passports regulation (the so-called Doktor U case), copied the European Union legislature’s usual approach of prioritising edge controls over private rights (in this case, the right to nowadays one’s ain cry inwards a passport).

In the expanse of visas, novel legislation waived visa requirements for Moldova as well as and then for a listing of other countries (Peru, Ecuador, the United Arab Emirates, many tropical isle States), champaign of study (for most of these countries) to the negotiation of visa waiver treaties amongst the countries concerned. Treaties on visa facilitation amongst Armenia, Republic of Azerbaijan as well as Republic of Cape Verde entered into force, as well as the European Union as well as Turkey began discussions on a visa waiver process.  Furthermore, the Commission proposed legislation to institute a novel ‘touring visa’, as well as to overhaul the EU’s visa code, inwards club to encourage tourism as well as other legitimate move (including novel rules on Schengen visas for European Union citizens’ non-EU identify unit of measurement members, discussed here). Overall, the long-term tendency of gradual liberalisation of the EU’s visa policy continued inwards 2014.

Irregular migration

The master copy focus inwards this champaign was the EU’s Returns Directive, amongst its detailed rules on many aspects of the expulsion process. Interestingly, piece the CJEU’s representative police describe prior to 2014 had focussed on the grounds for immigration detention (with the exception of the 2013 Filev as well as Osmani judgment, concerning entry bans), the representative police describe this yr was far to a greater extent than diverse. In the Mukarubega and Boujlida judgments (discussed here), the CJEU elaborated on the right to last heard inwards the administrative phase, earlier an expulsion club was issued to an irregular migrant.  The Court ruled that such a right existed fifty-fifty without an limited cite inwards the Directive, although it as well as then proceeded to bound the actual content of that right considerably.

Conversely, the Directive does comprise exactly about basic rules on judicial review of detention, as well as the CJEU interpreted these for the commence fourth dimension inwards the Mahdi judgment (discussed here). In particular, the CJEU enhanced judicial command over extension of the detention period, but did non clearly answer questions concerning review of the grounds for detention, notably the number of whether at that spot was a ‘risk of absconding’ purely because a someone lacked an identity document.

The CJEU also gave its commence ruling on judicial review of removal orders, inwards the Abdida representative (discussed here). It insisted that legal challenges to removal had to have got suspensive effect, where the irregular migrant alleged a serious risk to his or her wellness would resultant from render to the terra firma of origin. Also, for the commence fourth dimension this judgment addressed the living standards of irregular migrants pending removal (in this case, Mr. Abdida was entitled to basic social assistance, despite the absence of rules on this number inwards the Directive). It also confirmed that the listing of issues which Member States had to accept into concern human relationship when applying the Directive, including ‘non-refoulement’ (among other grounds), could constitute a ground for non-removal, as well as took a liberal see of the interpretation of ‘non-refoulement’. In effect, the CJEU ruled that inwards exactly about cases, the Directive could shape the footing of a claim for a shape of protection. But inwards the parallel representative of M’Bodj (discussed below) it ruled that such cases did non autumn inside the orbit of European Union rules on asylum, as well as inwards the Mahdi judgment it ruled that inwards the ordinary case, irregular migrants who could non last removed gained no special rights from the Returns Directive, inwards resultant existence left inwards limbo.

Next, the CJEU broke to a greater extent than of import novel the world inwards the cases of Bero as well as others (discussed here), for the commence fourth dimension ruling on detention conditions. It significantly limited the circumstances inwards which Member States could detain irregular migrants inwards prisons, rather than specialised detention centres.

Further of import questions are pending earlier the CJEU. Next year, the Court volition dominion on the extent of Member States’ powerfulness to institute to a greater extent than favourable weather condition for irregular migrants, past times issuing them amongst fines instead of expelling them (Zaizoune).  It volition also clarify the extent of the Member States’ obligation to give irregular migrants a menstruation for voluntary divergence (Zh as well as O). It volition clarify whether the limits on the criminalisation of irregular migrants, equally established past times prior representative law, also apply to those who stayed without potency (Celaj; the Court passed upward a risk to answer this dot inwards the 2014 ruling inwards Da Silva). And it volition clarify the grounds for detention further, inwards special interpreting when a ‘lack of cooperation’ past times an irregular migrant tin justify a longer menstruation of detention (Mehrabipari).

The Returns Directive also received attending from the Commission as well as the European Migration Network inwards 2014. For its part, the Commission written report (discussed here) offered exactly about indications of how Member States applied the Directive inwards practice, although many details were missing.  There were farther details of the exercise regarding detention inwards special inwards the Network written report (discussed here). Overall, at that spot were signs that Member States had increased their standards inwards exactly about areas but lowered them inwards others. But the Commission’s failure to convey whatever infringement actions against Member States, or to number guidance regarding the right application of the Directive, was disappointing.

There were developments regarding other aspects of irregular migration inwards 2014. The Commission issued a written report on national application of the Directive prohibiting work of irregular migrants (discussed here), which indicated that Member States were applying that Directive’s coercive rules enthusiastically, but failing to fully apply its rules on protection of migrants’ rights. For its part, the CJEU confirmed that European Union work police describe applies to third-country nationals, including irregular migrants (see give-and-take here). Also, the Commission reported for a minute fourth dimension on the application of the European Union rules on the immigration status of trafficking victims. Its written report (discussed here) indicates that Member States are silent unwilling to number many residence permits to such victims, hindering the effective prosecution of cases.

Finally, the EU’s readmission treaties amongst Turkey, Armenia, Republic of Azerbaijan as well as Republic of Cape Verde also entered into forcefulness inwards 2014. This completes the network of European Union readmission treaties to the due east as well as south-east (with the exception of Belarus), as well as for the commence fourth dimension extends that network to an African state. The CJEU also strengthened the EU’s powers to include readmission clauses inwards evolution treaties (as discussed here), presaging to a greater extent than readmission rules inwards future.

Legal Migration

After 4 years’ discussion, the European Union agreed novel legislation on 2 aspects of labour migration inwards 2014, adopting legislation on seasonal workers as well as intra-corporate transferees (the latter directive is discussed here). There was also exactly about progress on the 2013 proposal to amend the rules on students as well as researchers: the European Parliament adopted its seat inwards the spring, as well as the Council seat was agreed inwards December. Negotiations betwixt the 2 branches of the European Union legislature volition larn underway inwards 2015, but are probable to last hard due to their radically dissimilar views (I’ll await at these positions inwards item inwards a time to come weblog post).

The Commission also reported for the commence fourth dimension on the EU’s flagship legislation on labour migration, the ‘Blue Card’ Directive. The written report (discussed here) indicated that Member States were making non bad utilisation of the many options inwards the Directive, diluting its intended purpose to serve equally a agency to attract highly-skilled migrants to settle inwards the EU. The novel European Union Commission intends to suggest amendments to this legislation (discussed here) to ensure that it is improve able to achieve its goals.

The CJEU played a modest role inwards the evolution of European Union police describe on legal migration inwards 2014, ruling on issues relating to identify unit of measurement reunion, long-term residents as well as students. On identify unit of measurement reunion, the CJEU delivered a really disappointing judgment inwards Noorzai (discussed here) on the calculation of waiting periods for spouses married earlier the historic menstruation of 21, paying petty concern human relationship to its prior representative police describe on the demand to protect identify unit of measurement life as well as translate exceptions from the EU’s identify unit of measurement reunion Directive narrowly. For the identify unit of measurement members of Turkish workers, though, the Court insisted inwards Dogan (discussed here) on the application of a standstill clause, thereby exempting them from existence champaign of study to the to a greater extent than restrictive rules introduced inwards recent years – unless such rules could last justified on populace policy grounds. Next year, the Court is due to dominion on the fundamental enquiry of the limits to the imposition of integration weather condition equally a the world for identify unit of measurement reunion (K as well as A case). The Commission issued exactly about useful (if really belated) guidance on the application of the identify unit of measurement reunion Directive (discussed here); it remains to last seen whether it takes whatever activity to enforce the law.

In other areas, the CJEU ruled inwards Tahir that existence a identify unit of measurement fellow member of a long-term resident wasn’t plenty to transcend away a long-term resident inwards one’s ain right. The Court should dominion adjacent yr on: when integration weather condition tin last imposed on long-term residents (P as well as S; the Advocate-General’s sentiment is due inwards Jan already); on the orbit of equal handling for long-term residents (Van Hauthem), as well as on the extent of fees which Member States tin accuse to larn such status (CGIL).

Next, the Court ruled that Member States have got no ease discretion to do novel weather condition for the admission of non-EU students, inwards the Ben Alaya representative (discussed here). This judgment arguably applies past times analogy inwards other areas of European Union immigration police describe too.

Finally, the Court repeatedly rejected arguments that the UK’s opt-out over immigration matters applied to social safety matters, inwards special equally regards Switzerland (discussed here) as well as Turkey (I’ll come upward dorsum to the latter representative soon).

Asylum

The CJEU’s representative police describe on the qualification directive (which governs the Definition as well as content of refugee as well as subsidiary protection status) addressed a number of issues. In A, B as well as C (discussed here), it ruled out a diverseness of unpleasant methods of assessing the credibility of LGBTI asylum-seekers, piece oddly leaving it opened upward to Member States to inquire questions based on stereotypes. In Diakite, it ruled that the European Union rules on qualification for subsidiary protection, on grounds that at that spot is a risk of a serious threat to a civilian inwards cases of ‘indiscriminate violence inwards situations of international or internal armed conflict’, should not last interpreted consistently amongst the similar provisions of international humanitarian law. It also clarified exactly about other the world for subsidiary protection inwards M’Bodj (discussed here), ruling that protection on grounds of facing ‘torture or other inhuman or degrading treatment’ did non apply where the someone concerned would merely non have medical handling inwards his or her terra firma of origin. Furthermore, Member States’ powerfulness to laid ‘more favourable standards’ did non extend to permit them to give subsidiary protection equally an option to such people. European Union police describe could entirely apply inwards the context of the Returns Directive (see the Abdida case, discussed above). Early adjacent year, the CJEU should give of import rulings inwards the cases of T (regarding terrorism) as well as Shepherd (regarding a USA citizen claiming asylum due to conscientious objection to the Republic of Iraq war); at that spot is an Advocate-General’s sentiment inwards both cases already.

As for the reception conditions Directive, the CJEU delivered a liberal ruling inwards Saciri (discussed here), affirming asylum-seekers’ right to identify unit of measurement housing on the footing of a really generous interpretation of the Directive. In the expanse of asylum procedures, the Court clarified the human relationship betwixt refugee as well as subsidiary protection status inwards the MM representative (discussed here), as well as took a narrow see of the application of information protection rules to the asylum physical care for inwards Y as well as S (discussed here).

Finally, the CJEU did non dominion on the Dublin system on responsibleness for asylum claims inwards 2014, except to dominion inwards the Qurbani representative (discussed here) that it did non have got jurisdiction to translate Article 31 of the United Nations Refugee (Geneva) Convention on this context. But its approach was implicitly criticised past times the European Court of Human Rights (ECtHR) inwards the Tarakhel ruling (discussed here). The CJEU chop-chop reacted amongst its quite bonkers judgment on the EU’s accession to the ECHR (discussed here), insisting that its peculiar notion of naïve usual trust inwards each Member States’ asylum organization should prevail over whatever possibility that the other Court powerfulness respect a breach of human rights inwards private cases. The Dublin organization was also the focus of the sole legislative proposal on asylum inwards 2014 (discussed here), which sought to clarify the rules on unaccompanied minors.

Conclusions

In the expanse of costless movement of European Union citizens, the CJEU has made important gestures to its critics this year, equally regards the number of ‘benefit tourism’ as well as on the limited legal rights of those who have got been convicted of crimes. But it continues to accept a robust see of equal handling rights as well as of the Definition as well as rights of European Union citizens’ third-country identify unit of measurement members, fifty-fifty inwards cases exterior the traditional rules. If David Cameron is inwards a seat later adjacent year’s United Kingdom of Great Britain as well as Northern Ireland full general election to insist upon renegotiation of the UK’s European Union membership, this volition last i of the fundamental political issues facing the EU.

In the expanse of immigration as well as asylum, the tension betwixt immigration command as well as human rights tin last seen peculiarly inwards the EU’s continued strengthening of its edge controls despite the large loss of life inwards the Mediterranean. It’s oft suggested that a to a greater extent than developed European Union external policy on asylum could trim the number of lives lost, but at that spot are many legal as well as political issues belongings upward such a resolution. This autumn, I attended a seminar on these issues: at that spot was a consensus amid the high-level authorities experts that an effective policy was merely non politically realistic.

Once non-EU citizens do range the EU’s territory, however, the CJEU’s relatively liberal interpretation of the legislation on legal migration, asylum as well as fifty-fifty the Returns Directive agency that they savour to a greater extent than rights than the initial critics of much of this legislation idea would last likely. Interestingly, the EU’s traditional economical objectives are existence increasingly used equally justification for the adoption of to a greater extent than liberal rules on visas as well as labour migration, non entirely past times the European Union legislature but also (in the Ben Alaya judgment) past times the CJEU.

The Court’s rulings this yr have got confirmed that European Union police describe constrains Member States’ discretion inwards this champaign significantly, non entirely establishing the exhaustive nature of the EU’s rules on edge command on admission of students, but also setting a ceiling equally regards the Definition of refugee as well as subsidiary protection status as well as developing many novel rules inwards the context of the Returns Directive. But at that spot is an interesting novel development: the CJEU has opened upward a minute front, defending European Union rules also from whatever important influence past times international law. This is evident inwards several areas: the decoupling of the EU’s subsidiary protection rules from international humanitarian law; the ‘channelling’ of the ECtHR jurisprudence on medical cases into the Returns Directive instead of asylum law; the continued implicit snub to international soft police describe (this year, equally regards the UNCHR guidelines on credibility assessment inwards LBGTI cases); as well as most patently the CJEU’s barely suppressed rage at the ECtHR’s mild criticism of the dysfunctional Dublin regime. Time volition tell what the effects of the Court’s hubris volition be.

 

Barnard & Peers: chapter 13, chapter 26

 

 

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