Temporary Protection for Ukrainians in the EU? Q and A

 

 

Professor Steve Peers, University of Essex

*updated March 2 2022 to include the Commission proposal for use of the temporary protection Directive, and guidance for applying EU external borders law.  Updated March 3 to refer to the Council agreeing on the decision. Updated March 4 to discuss the text of the decision. Updated March 28 to refer to guidance on and discussion of implementation. 

**For assistance on seeking temporary protection in the EU, and guidance on implementation, see the links at the end of the blog post 

Among the many big developments over the last few days in response to the Russian invasion of Ukraine, there was an important potential asylum law measure – the decision to trigger the EU’s temporary protection Directive, a legal framework for mass influxes of people needing protection dating back to 2001 but never previously used.

Member States indicated 'broad support' for use of the Directive at the EU Council meeting of February 27. The Commission duly proposed a Decision to give effect to this on March 2, alongside guidance for applying EU external borders law. The Council agreed on the  Decision on March 3, and formally adopted it on March 4. It applied from the same day. So to fully understand the legal rules now applying to those fleeing the invasion, it's necessary to discuss both the 2001 Directive and the 2022 Decision to give effect to it. What do these new rules mean for the hundreds of thousands – if not millions – of people now fleeing Ukraine?

 

Which Member States does it apply to?

EU asylum law in principle applies to all Member States, except for the UK, Ireland and Denmark, which had an opt out from the Directive. The UK chose to opt in – although obviously this is now moot in light of Brexit. Ireland initially opted out, then opted in to the Directive in 2003. Denmark remains outside the scope of the Directive, but can choose to adopt its own rules on temporary protection if it wishes.

The parallel guidance on applying EU external borders law applies to all Member States except Ireland (because the other EU Member States that do not apply Schengen fully apply EU external borders rules in the meantime), and Schengen associates (Norway, Iceland, Switzerland and Liechtenstein). 

Note that EU Member States waived short-term visa requirements for Ukrainians back in 2017 already. This law applies to all Member States (and Schengen associates) except Ireland; and Ireland has recently waived short-term visa requirements for Ukrainians unilaterally.

 

Who is covered by temporary protection?

The Directive applies to a ‘mass influx’ of ‘displaced persons’. A ‘mass influx’ is defined as:

 …arrival in the [EU] of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the [EU] was spontaneous or aided, for example through an evacuation programme;

‘Displaced persons’ are defined as:

…third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular:

(i) persons who have fled areas of armed conflict or endemic violence;

(ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights;

‘Article 1A of the Geneva Convention’ refers to the definition of ‘refugee’ under the UN Refugee Convention – ie a well-founded fear of persecution on grounds of race, religion, political opinion, nationality or particular social group – although note that the Directive does not necessarily apply onlyto those who fall within that refugee definition (‘who may fall within’). Those fleeing Ukraine can point to the ‘armed conflict’ ground of the ‘displaced persons’ definition in this Directive – although note that the list of the two groups who are covered by the Directive is not exhaustive (‘in particular’), meaning that other groups of people might meet the definition too.

Note also that the Directive only applies to those leaving ‘their country or region of origin’. This ought to cover both Ukrainian citizens and non-Ukrainians who can argue that their ‘origin’ is in Ukraine (‘origin’ is not further defined). That scope is broader than the Refugee Convention, which applies where a person is: ‘outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country’ (or, if stateless, of their country of habitual residence).

Conversely, this means that the Directive does not apply to those whose ‘origin’ is not Ukraine. This might mean that it is interpreted to exclude non-Ukrainian citizens who have moved to Ukraine in recent years. But many of them still need to flee the invasion – and hopefully their need to flee and immediate humanitarian requirements will be recognised even if they technically fall outside the scope of the Directive.  

However, the scope of temporary protection is further defined in the Council decision, given that, according to the Directive, the decision must specify the groups of persons covered, although Member States can extend the regime to other groups displaced for the same reasons and from the same country or region of origin. But if they do so, the financial support provided for in the Directive will not apply to such groups.

According to the Decision, those covered by temporary protection are: 'the following categories of persons displaced from Ukraine on or after 24 February 2022, as a result of the military invasion by Russian armed forces that began on that date':  

(a) Ukrainian nationals residing in Ukraine before 24 February 2022;

(b) stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022; and,

(c) family members of the persons referred to in points (a) and (b).

The Decision applies in a different way to another category of people: 

...stateless persons, and nationals of third countries other than Ukraine, who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin.

For this group, 'Member States shall apply either this Decision or adequate protection under their national law'. Adequate protection is not further defined; the preamble adds only that it is 'to be decided upon by each Member State'. The preamble also refers vaguely to the procedure which would apply to this group:

Those seeking to benefit from the protection should be able to prove that they fulfil these eligibility criteria by presenting the relevant documents to the competent authorities in the Member State concerned. If they are unable to present the relevant documents, Member States should redirect them to the appropriate procedure.

Furthermore, the decision notes that, as referred to in the Directive:

Member States may also apply this Decision to other persons, including to stateless persons and to nationals of third countries other than Ukraine, who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin. 

The preamble gives an indication of who might fall within the scope of this option: 

Such persons could include third-country nationals who were studying or working in Ukraine on a short-term basis at the time of the events leading to the mass influx of displaced persons. 

And the preamble indicates that 'in any event' this group of fleeing people 'should...be admitted into the Union on humanitarian grounds without requiring, in particular, possession of a valid visa or sufficient means of subsistence or valid travel documents, to ensure safe passage with a view to returning to their country or region of origin'. This reflects the Commission's guidance on how to apply external borders law in light of the mass influx. 

This does not exhaust the list of further groups of people who might be optionally covered, as the preamble goes on to say: 

...Member States should be encouraged to consider extending temporary protection to those persons who fled Ukraine not long before 24 February 2022 as tensions increased or who found themselves in the territory of the Union (e.g. on holidays or for work reasons) just before that date and who, as a result of the armed conflict, cannot return to Ukraine.

Next, the Decision gives a definition of family members covered by temporary protection, 'in so far as the family was already present and residing in Ukraine before 24 February 2022': 

(a) the spouse of a person referred to in paragraph 1, point (a) or (b), or the unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its national law relating to aliens; 

 

(b) the minor unmarried children of a person referred to in paragraph 1, point (a) or (b), or of his or her spouse, without distinction as to whether they were born in or out wedlock or adopted;

(c) other close relatives who lived together as part of the family unit at the time of the circumstances surrounding the mass influx of displaced persons, and who were wholly or mainly dependent on a person referred to in paragraph 1, point (a) or (b) at the time. 

How was temporary protection set up?

The Directive is just a framework for a possible temporary protection system. So the temporary protection regime was not established automatically, but only because the Council (ie Member States’ home affairs ministers), acting by a qualified majority on a proposal from the Commission, agreed that there is a mass influx of displaced persons. (In fact the vote in favour was unanimous).

According to the Directive, the Decision setting up temporary protection had to be based on:

(a) an examination of the situation and the scale of the movements of displaced persons;

(b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures;

(c) information received from the Member States, the Commission, UNHCR and other relevant international organisations.

This information can be found in the preamble. 

The European Parliament has to be informed of the decision, but did not have a vote beforehand.

Also, the Council decision had to set out when temporary protection takes effect (in practice, as of March 4 2022); ‘information received from Member States on their reception capacity’; and ‘information from the Commission, UNHCR and other relevant international organisations’. Again, such information can be found in the preamble. 

 

How many people does it apply to?

The numbers covered by temporary protection are not necessarily unlimited. Member States had to ‘indicate - in figures or in general terms - their capacity to receive’ displaced persons. The Council decision setting up temporary protection had to set out these numbers. In practice, there is only a brief mention of this point in the preamble: 'over and above the absorption capacity of the Ukranian [sic] diaspora residing in the Union' a few Member States have indicated that they have capacity exceeding 310 000 places  Later on Member States ‘may’ declare that they have more reception capacity. 

If the numbers who are ‘eligible for temporary protection’ is higher than the numbers that Member States have said they can accept, ‘the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected’. It will remain to be seen what happens on this point.

If the numbers are exceeded, then (implicitly) Ukrainians not covered by temporary protection can still make asylum applications – but one could imagine that in this scenario, Member States would struggle to manage the numbers concerned.

 

How long will it last?

The starting point is that temporary protection is one year long, although it can be terminated early if the Council decides to end it, on a qualified majority vote on a proposal from the Commission, if the Council has established that conditions in the country of origin have improved sufficiently so ‘as to permit the safe and durable return’ of the beneficiaries.

After the initial year, temporary protection is automatically extended for further periods of six months to a two-year maximum. A further extension for up to a third year is possible, again on a qualified majority vote on a proposal from the Commission.

 

What rights do people covered by temporary protection have?

Member States must issue residence permits for the duration of temporary protection. For those not yet on the territory, they must issue visas to ensure that they can enter. 

Also, Member States must permit temporary protection beneficiaries to take up employment or self-employment, but they may give priority to EU citizens and EEA nationals, as well as legally resident third-country nationals receiving unemployment benefit. The ‘general law’ regarding remuneration, social security, and other conditions of employment in each Member State applies.

As for social welfare and housing, Member States must ‘ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing’, and ‘shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care’ – which ‘shall include at least emergency care and essential treatment of illness’. Member States must also ‘provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence.’

For education, Member States must give ‘access to the education system under the same conditions as nationals of the host Member State’ for those under 18, but may confine this to the state education system. Admission of adults to the general education system is optional.

According to the Directive, Member States have to authorize entry of family members, ‘in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx’. But this only applies to ‘core’ family members: 

(a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted;

The Directive states that admission of a broader group of family members is only optional, ‘taking into account on a case by case basis the extreme hardship which they would face if the reunification did not take place’: 

(b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time.

However, the rules on family members in the Directive have in effect been superseded by the Decision implementing it, which places both these categories of family members within the mandatory scope of temporary protection as such - without needing to take 'extreme hardship' into account. (The Decision does require that 'the family was already present and residing in Ukraine before 24 February 2022') 

Note that the Directive clarifies that Member States may adopt more favourable rules for persons covered by temporary protection. On this point, the preamble elaborates further: 

This Decision is compatible with, and can be applied in complementarity with, national temporary protection schemes, which can be considered as implementing Directive 2001/55/EC. If the Member State has a national scheme that is more favourable than the arrangements set out in Directive 2001/55/EC, the Member State should be able to continue applying it, since that Directive provides that Member States may adopt or retain more favourable conditions for persons covered by temporary protection. However, should the national scheme be less favourable, the Member State should ensure the additional rights provided for in Directive 2001/55/EC.

Finally, there is a right to ‘mount a legal challenge’ to exclusion from temporary protection or family reunion. CJEU case law on other EU migration law makes clear that this means access to the courts. 

Can temporary protection beneficiaries move between Member States?

There are two dimensions to this issue: before and after obtaining temporary protection. 

Before obtaining temporary protection, the preamble to the Directive states that: 

Ukrainian nationals, as visa-free travellers, have the right to move freely within the Union after being admitted into the territory for a 90-day period. On this basis, they are able to choose the Member State in which they want to enjoy the rights attached to temporary protection and to join their family and friends across the significant diaspora networks that currently exist across the Union. This will in practice facilitate a balance of efforts between Member States, thereby reducing the pressure on national reception systems.

So the Member States have explicitly agreed to 'applicants' choice' as regards seeking temporary protection, facilitated by the short-term free movement of Ukrainians after their visa-free entry . (The preamble is silent about the position of non-Ukrainians covered by the Decision in this respect). This is a Copernican revolution from the way in which the EU's Dublin system treats the allocation of responsibility for asylum applicants - although Syrians, Eritreans and other asylum seekers have diasporas too. Moreover, most asylum seekers are from countries whose nationals do not benefit from a visa waiver. 

After obtaining temporary protection, the Directive states that if a person with temporary protection from one Member State remains on or seeks to enter (without authorisation) the territory of another Member State without authorization during the temporary protection period, the Member State which granted temporary protection must take them back. This is similar to the EU's Dublin system on responsibility for asylum seekers (on which, more below). However, the Directive provides that Member States may agree bilaterally that this rule does not apply.

In fact, during negotiations on the 2022 Decision, all Member States decided to apply this option of not applying the take-back rule, adopting a statement (not yet published in the EU Official Journal, but referred to in the preamble to the Decision) agreeing not to apply this rule in order to support frontline Member States, unless Member States agreed bilaterally that the rule would apply after all. This is very much a 'gentlemens' agreement', given that it is opposite to the default rule in the Directive: in other words, it is a political commitment which is arguably not legally enforceable.

Note, though, that if a person with temporary protection from one Member State decides to move to another Member State, they have no right to insist that their temporary protection status is transferred. So they have no rights as such in that Member State, even though it has made a commitment not to request the first Member State to take them back. The preamble makes this point explicit: 

Once a Member State has issued a residence permit in accordance with Directive 2001/55/EC, the person enjoying temporary protection, whilst having the right to travel within the Union for 90 days within a 180-day period, should be able to avail of the rights derived from temporary protection only in the Member State that issued the residence permit. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under this Decision. 

 

How does temporary protection relate to asylum applications?

The point of a temporary protection regime is to reduce pressure on asylum systems, as the preamble to the Decision reiterates: 

Introducing temporary protection is also expected to benefit the Member States, as the rights accompanying temporary protection limit the need for displaced persons to immediately seek international protection and thus the risk of overwhelming their asylum systems, as they reduce formalities to a minimum because of the urgency of the situation.

Indeed, it may well be the case in practice that most people with temporary protection will not feel the need to apply for asylum, as least as long as temporary protection is applicable. But the Directive nonetheless addresses what happens if they do apply for asylum.

According to the Directive, temporary protection ‘shall not prejudge’ refugee recognition under the Refugee Convention. It will be possible to apply for asylum ‘at any time’.* Any asylum application not processed by the end of the temporary protection period has to be processed afterwards.

However, Member States can deter applications for asylum by providing that a person cannot hold temporary protection status simultaneously with the status of asylum-seeker (the reason that this would deter applications is that asylum-seekers usually have fewer rights than temporary protection beneficiaries would have). But if an application for asylum or other protection status fails, a Member State must continue to extend temporary protection status to the beneficiary.

Member States may exclude a person from the benefit of temporary protection on grounds identical to the Refugee Convention exclusion clauses (ie war crimes/crimes against humanity, serious non-political crimes, or acts against the principles and purposes of the UN), or the Refugee Convention clauses on exclusion from non-refoulement (ie ‘there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State’). Exclusions ‘shall be based solely on the personal conduct of the person concerned’, and must be ‘based on the principle of proportionality’.

As for which Member State would be responsible for considering an asylum application, the EU’s Dublin rules will determine in which Member State an application is made. In most cases, this will mean that the Member State that granted temporary protection is responsible for considering the application, because that entails issuing a residence permit, and the Dublin rules assign responsibility to a Member State which issued a residence permit. (This takes precedence, under the Dublin rules, over the responsibility of the Member State of first entry).  

Unfortunately, the temporary protection Directive could muddy the waters somewhat, as it refers to the Member State which has accepted the transfer of the person onto its territory being responsible. It is not clear if that is a different issue from being the Member State which issued the residence permit. Also the commitment not to send back temporary protection beneficiaries to the Member State which granted temporary protection overlaps awkwardly with the Dublin rules which would normally require this to take place for asylum seekers. 

  

What happens once temporary protection expires?

Once the temporary protection regime ends, the ‘general laws’ on protection and on foreigners apply, ‘without prejudice’ to certain specific provisions in the Directive. Arguably the reference to the ‘general laws’ must now be understood as a reference not only to the relevant national legislation, but also to EU rules on asylum and the EU’s Returns Directive, which were adopted after the temporary protection Directive. However, the Returns Directive explicitly gives way to more favourable rules in other EU immigration or asylum law - which includes those in the temporary protection Directive. 

For those applying for asylum, that means that the definitions of refugee and subsidiary protection in the EU’s qualification Directive will apply, along with the procedural rules in the procedures Directive and the rules on the status of asylum seekers in the reception conditions directive. The EU’s Dublinrules will determine in which Member State an application is made, although the temporary protection Directive includes some (unclear) additional rules on that issue.  

It’s also possible that Ukrainians could obtain another form of legal status, under the national or EU laws on legal migration (EU law has partly harmonised national laws on this issue).

Those who do not obtain legal status via an immigration or asylum route will in principle have to leave. The specific rules in the temporary protection Directive concerning return first of all provide for rules on voluntary return. Many (but not all) Ukrainians would likely wish to return voluntarily anyway, if the situation improves; but it’s anyone’s guess if it will do.

There is an express possibility of enforced return of persons after the regime has ended, but such return must be ‘conducted with due respect for human dignity’, and Member States ‘shall consider any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases’. They must also ‘take the necessary measures concerning’ residence status of former beneficiaries of temporary protection ‘who cannot, in view of their state of health, reasonably be expected to travel; where for example they would suffer serious negative effects if their treatment was interrupted’. Specifically, those persons ‘shall not be expelled so long as that situation continues.’ Finally on the issue of return, Member States have discretion over whether to let children complete their school year.

 

Comments

When the Directive was adopted back in 2001, there was concern among asylum specialists that it might undercut the Refugee Convention, in particular providing a possibility for Member States to set up a system with a lower standard of protection instead of considering asylum applications. In practice, the EU has since adopted two phases of asylum laws, modestly enhancing the level of protection when adopting the second phase. 

But following an initial welcome of people fleeing the Syrian civil war at the outset of the 2015-16 'refugee crisis', EU asylum law took a dystopian turn in practice. Pushbacks from the territory.  Collaboration with dubious non-EU countries like Libya, to keep asylum-seekers from reaching the EU in the first place - even if it meant they remained subject to appalling treatment in that country.  Detention of asylum seekers in unpleasant conditions. A questionable, but legally unaccountable, quasi-agreement with Turkey. Informal - and again unaccountable - readmission arrangements. A border agency subject to increasing concerns about the legality and morality of its behaviour. 

The descent of asylum law in practice into this moral abyss has shown the EU and its Member States at their worst. But today's temporary protection decision shows the EU at its best - precisely because it waives so many of the basic precepts of its usual asylum rules (visa requirements, detention, procedural rules, the Dublin system, family reunion conditions, limits on employment).  This can only be welcome, but it raises obvious questions about the double standards which apply to others fleeing war or persecution.

Assistance with and guidance on temporary protection 

Commission guidance on implementation of the temporary protection decision

Council discussion paper on coordination of implementation

ECRE compilation of information from different Member States

Luxembourg government

NGO in Luxembourg 

Austrian government hotline for those needing humanitarian assistance and legal aid

(section added March 4 2022, updated March 28 2022)

Further reading

2016 report on the implementation of the Directive in Member States' national law in 2016. Note that now the temporary protection Directive has been activated in practice, Member States might decide to revise their implementing measures. 

UK Statutory Instrument 2005/1379 implementing the Directive; UK Statutory Instrument 2019/745 repealing SI 2005/1379 in light of Brexit (see reg 52). 

(section added March 2 2022)

 

Photo credit: Leonhard Lenz, via Wikimedia Commons

*Corrected on Feb 28 2022 to drop the statement that 'Member States may delay consideration of an application for Convention refugee status until the temporary protection has ended'. In fact the Directive does not explicitly provide for this as such - although as noted, if a Member State chooses not to permit the status of asylum seeker concurrently with that of temporary protection, in practice this is likely to deter asylum applications as long as temporary protection applies. 

Continue reading Temporary Protection for Ukrainians in the EU? Q and A

The considerable contribution of British lawyers to EU (migration) law

 

Kees Groenendijk, Professor Emeritus, Radboud University Nijmegen, Netherlands.

The final sentence of press release 10/20 on the consequences of the UK’s withdrawal from the EU for the Court of Justice reads: “The Court of Justice pays tribute to the major contribution of all its former British members to European integration in general and to the case-law of the Court of Justice and the General Court in particular.” After all dramatic statements on the behaviour of British politicians during the 47 years the United Kingdom was a Member State of the EEC and the EU, it may be right to take a minute to consider the British contribution to EU law, and EU migration and free movement law in particular.

Together with their Irish colleagues, the five British judges and the five British advocates-general who were members of the Court since 1973 with their experience as practising common law lawyers unmistakably contributed to the gradual development of that Court, modelled in the 1957 Treaty of Rome after the French Conseil d’Etat, towards a more open and dynamic court. The President of the Court in his speech at the farewell ceremony for the last British judge praised the British members for their pragmatism, common sense and their inimitable sense of humour. He also recalledthat the Court only after the arrival of the British and Irish judges started to cite previous case-law in its judgments “because such citations did not necessarily form part of the legal traditions of the six original Member States” – though without adopting a strict rule of stare decisis.

The British judges and advocates-general

Francis Jacobs, the longest serving advocate-general (1988-2006), in his conclusions frequently and ardently pleaded for the protection of human rights and of individual rights in Community law, even if his pleas were not always immediately accepted by the Court (Fordham I.L.J (29) 2005, p. 690-715). His handbooks contributed to Community law being taken serious in the UK and elsewhere inside and outside Europe – among others The European Convention on Human Rights (Oxford UP 1975), The Court of Justice of the European Communities (Sweet & Maxwell 1977) and The Sovereignty of Law: the European Way(Cambridge UP 2007).

The first British judge, John Mackenzie Stuart, born, advocate and judge in Scotland, served 16 years in Luxembourg. As President of the Court he stimulate the establishment of the General Court, to which part of the Court of Justice’s tasks were transferred. His successor, Gordon Slynn, previously served seven years as Advocate-General. Judge Slynn’s successor David Edward, the second Scottish judge, at the occasion of the farewell of his successor wrote an interesting and topical essay entitled “EU and the Separation of Member States” on separatist [secessionist?] movements in Catalonia, Scotland and Flanders (Fordham I.L.J. (36) 2012, p. 1-18).

The penultimate British judge, Konrad Schiemann, was born in 1937 in Berlin. He survived the RAF bombardments on that city. Shortly after the War he migrated as an orphan to family in London. His colleagues at the Court of Appeal at his appointment in the Court in 2004 asked him what for heaven’s sake he was going to do in Luxembourg. Possibly the thrust of his answer was given in a speech in 2012 under the title The EU as a Source of Inspiration: in 1957, the year the EEC-Treaty was signed and twelve years after the end of the Second World War, displaced persons were still living in camps. The last DP camp in Western Europe closed in 1959. Judge Schiemann was aware of the EU as a guarantee against the human misery and disruption of war.

Among lawyers on the continent the last British A-G, Eleanor Sharpston, is known for her original and lucid conclusions. Her conclusion in the Vethanayagamcase (C-680/17) case clearly illustrated that the Court could have chosen for an interpretation of the clause on remedies in the Visa Code which would have supported the rights of many visa applicants and their effective remedy against a visa refusal rather than allow Member State to impede access to such remedy. The UK government proposed to continue Sharpston’s tenure during the transitional period after Brexit during which, there would no longer be a British judge in the Court of Justice, whilst it may still rule on references of UK courts on free movement rights of Union nationals in the UK on the basis of the Withdrawal Agreement. But Barnier, on behalf of the EU, was uncompromising [unyielding?]. After the appointment of a Greek successor on her chair by the 27 remaining Member States in September 2020, she started cases against the Council and the Member States before the General Court which within a few weeks ingloriously endedin her own Court, illustrating that divorce always hurts.

In his farewell address the last British judge, Christopher Vadja, son of a Hungarian (refugee?) father and a German mother, reminded that the UK soon after it joined the EU recognized the important role of the Court of Justice for the development of EU law. The judgment in Defrenne v. SABENA (C-43/75) where the Court held the clause on equal pay for men and women in the EEC-Treaty to be directly applicable, provided an early lesson. Between 1973 and 2016 (the year of the Brexit referendum) the UK intervened in 281 cases in support of one of the parties and presented observations in 718 preliminary references from other Member States, more than any other Member State. “This policy of active engagement with the Court was to the benefit not just of the UK, the Court and the development of European law generally but also of many generations of English barristers, including myself, who were instructed to represent the UK.” One could add that his UK tradition contrasts with the practice of other States entrusting only a limited group of government officials with the representation in Luxembourg, thus restricting the distribution of knowledge of Union law among their national bar.

Until the mid-1990s during the oral hearings the lawyers would read out their pleadings and then go home. The experience of the last British judge in the General Court: “I recollect sad hearings from the old times in Luxembourg when days of preparation and hours of pleadings elicited not a single question.” (….) “[UK] judges are accustomed to test propositions verbally by asking provocative questions.” The British members stimulated their colleagues to put question to the parties. That tradition did not end with the departure of the UK: see a report on the Grand Chamber hearing on 12 October 2020 in the reference by a Dutch court on the independence of Polish courts and the European Arrest Warrant (C-354/20 PPU and C-412/20 PPU).

Judge Vadja also pointed to the limited public access to the hearings of the Court the hearing of the Wightmancase on the question whether a Member State had the right to unilaterally revoke its Article 50 notification to withdraw from the EU a maximum of 300 persons could be present in the Grand Salle in Luxembourg. He contrasted this with the 300,000 persons who viewed the first day of the proceedings before the UK Supreme Court on that court’s live stream of the first Miller case on the equally important question whether the Article 50 notification required parliamentary approval and the more than 12 million views of the hearing before the UK Supreme Court of the second Miller case on the prorogation of the UK Parliament. Implicitly, he stressed the importance of the adage ‘Justice should be seen to be done’. Judge Vadja concluded his comparison with: “For my part, I look forward to the day when I can watch my former colleagues in action from the comfort of a sofa anywhere in the world.”

Common law principles, common history and current practice in Luxembourg

The President of the General Court in his address to his departing British colleague Ian Forrester stressed the important contribution of the common lawyers in the court in emphasising  the need for due process and procedural fairness. In his words: “Due process should prevail, even in terrorist cases. As Ian told us repeatedly, due process not only serves the cause of the defendant, but also the interest of the administration, for the very simple reason that procedural safeguards lead to better decision making. (…)  [T]he common law tradition adds a specific procedural dimension to the concept of fairness: the executive is a party before the judge as any other party. There is no reason why public authorities should, as a rule, benefit from privileged procedural positions, either as an appellant or as a defendant. This also applies when it comes to issues like access to evidence used in court proceedings.”

Judge Forrester, also from Scotland, started his farewell addresswith a short history lesson in French:

“Je vais vous parler de l’histoire, du droit européen, et de notre cour.  Mon père est né en 1899 et a fait l’entrainement d’un officier d’artillerie mais n’a jamais été déployé en France.  Un oncle a servi en Gallipoli.  Un cousin est mort en Birmanie. Une histoire familiale assez typique.  Nous avons tous rencontré ceux aujourd’hui fort âgés qui ont des témoignages étonnants de guerre et de conflit.  Deux juges de la Cour de Justice ont constaté qu’ils s’opposaient lors de la même bataille en Italie pendant notre dernière guerre civile européenne.  L’ancêtre d’un autre juge était soldat dans la bataille de Waterloo.  Un collègue me disait juste après le référendum en 2016 que ses deux grands-pères étaient soldats sur les deux côtés lors de la Bataille de la Somme.  Robert Schumann, fondateur, est né en Alsace-Lorraine, soldat allemand pendant la première guerre, français pendant la deuxième. Les guerres ont marqué notre continent.”

Judge Vadja used the occasion of his departure to give outsiders a look in the kitchen in Luxembourg. In an extensive interview he gave an insight in the work of a judge and the processing of cases inside the Court of Justice from the distribution of cases till the drafting of a judgment, including useful advice for lawyers pleading before the Court.

The amicus curiae and the independence of Polish judges

Less than two months after Brexit, the Court of Justice was confronted with the typical Anglo-Saxon legal concept of the amicus curiae, the expert outsider who upon request of the judge or on his own initiative provides the judge with relevant information for making her decision. In the ECtHR, which from its inception had more common law influence, the amicus curiae has a considerable history, codified in rules on third party intervention in Article 36(2) ECHR and Article 44(3) of the ECtHR Rules of Procedure. UNHCR, Amnesty International and Human Rights Watch, among others, regularly act as amicus curiae in proceedings in Strasbourg.

In the closed system of participants in proceedings before the Court of Justice the amicus curiae until recently was unknown. Its absence forces UNHCR to publish its observations on questions of interpretation of EU asylum instruments pending before the Court of Justice in notices distributed on the internet and in that way reaching the Court – or alternatively, produced as an annex to the observations of the lawyer of the asylum seeker (see fn 13 of the AG’s conclusion in Diakité, C-285/19).

The Grand Chamber of the Court in its judgmentof 26 March 2020 in two joined references by Polish courts on the serious threats to the independence of judges in Poland, summarizes the main points of three letters of the Polish Ombudsman to the Court. The Ombudsman, who was not a party in those cases, in his letters pointed among others to the recent Muzzle Law, which considerably strengthens the new disciplinary regime for judges. That law was introduced with the aim to nullify the effet of the AK and others judgment of the Court of 19 November 2019 on the lack of independence of  new disciplinary chamber (“Chamber of Extraordinary Control and Public Affairs”) of the Polish Supreme Court. The Ombudsman referred to  the A-G’s conclusion that the Court did not have sufficient factual and legal material to enable it to rule on those requests. He described the growing number of disciplinary proceedings and administrative measures and the adoption of disciplinary measures against judges. Further, the Ombudsman informed the Court of Justice that the Polish National Prosecutor recently brought an action before the disciplinary chamber of the Supreme Court to waive immunity for the judge who made the reference for a preliminary ruling in one of the joined cases.

The Court of Justice noted that its Statute and Rules of Procedure do not provide for the interested parties referred to in Article 23 of the Statute to submit observations in response to the A-G’s Opinion. But it also observed that the Court “may at any time, after hearing the Advocate General, order the reopening of the oral procedure in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information, or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to have a decisive influence on the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.” The Court concluded that in this case it had sufficient information and that the new facts relied on by the Ombudsman “are not of such a nature as to have a decisive influence on the decision which the Court is called upon to give” (paras 27-30 of the judgment). The Court held the two references inadmissible because interpretation of the EU law provisions concerned was not necessary for deciding the disputes in the main procedures. After reaching that conclusion, however, the Court extensively reasoned that not being exposed to disciplinary proceedings or measures for bringing a matter before the Court, which is exclusively within their jurisdiction, constitutes a guarantee that is essential to judicial independence (paras 54-59 of the judgment).

Even, if the information provided by the Ombudsman did not have “decisive influence” on the outcome of the case, apparently, the Court considered that information to be relevant. The reference to Article 83 of the Rules of Procedure may well be the first step in the direction of the amicus curiae in Luxembourg. A month later, in April 2020, the Court of Justice ordered Poland to suspend pending disciplinary cases and stop bringing new case before the disciplinary chamber (C-791/19). That order was ignored by the Polish authorities and the disciplinary chamber.

Tenacious negotiators

At the Hohenheimer Tage zum Migrationsrecht, the annual meeting of German immigration, I often heard German friends complain about the tenacious  UK lawyers in the Council Working Groups during the negotiations on free movement, social rights or some of the asylum instruments. My standard reply was that the UK negotiators may be persistent, but once an EU instrument is adopted, the UK, generally, applied it far better than the Member State who simply copy past the instrument in their national law and leave every else unchanged in practice.

A sad example of this persistent negotiating is the reduction of the protection against expulsion of Union citizens on public order grounds. In 2004 the Council unanimously agreed to reinforce that protection in the Articles 27 and 28 of Directive 2004/38, adopted on the day before the accession of ten new Member States to the Union. Since 2008, the UK repeatedly pleaded in the EU Council of Ministers to give Member States more room for expulsion after a criminal conviction. Sometimes other West-European Member States joined this British plea (see Council document 15903/08of 8 November 2008 and Council document 10313/13of 31 May 2013). Each time such proposals met with opposition from the Commission and got insufficient support in the Council.

In the 2016 pre-Brexit-referendum-deal between PM Cameron and the European Council (discussed here), that Council agreed and the Commission promised to propose a considerable ‘softening’ of the public order clauses in Directive 2004/38, in case the UK remained in the EU. Finally, the UK achieved its aim during the Brexit negotiations. For EU nationals in the UK and for British nationals in the EU with residence rights under the EU-UK Withdrawal Agreement the protection against expulsion on public other grounds will be reduced to the level of the national legislation for conduct occurred after 2020 (Article 20 of the withdrawal agreement: see discussion here). This full renationalisation clearly limits the acquired rights of the millions of Union citizens who used their free movement rights to and from the UK before 2021. 

British courts, lawyers and legal academics

The references by British courts made an important contribution to the development of the rules on free movement of Union citizens. A quarter of all CJEU judgments in that field in 2008-2019 were given in answer to preliminary references by British judges. Especially, their questions concerning the right of permanent residence provide for in Directive 2004/38 (Dias, Alarape, Onuekwereand Lounes, discussed here) and on the admission of durable but unregistered partners of Union citizens (Rahman, Bangerand S.M., discussed here) have produced some clarity and focus attention in several Member States on their rights. A bill implementing the last three judgments is currently pending in the German Bundestag. Almost half of the judgments of the Court of Justice concerning the rights of third-country national family members of EU citizens were given in answer to questions from British courts (V. Passalacqua, Legal mobilisation and the construction of EU migration law, Florence 2020, diss EUI, p. 8).  

Many of those questions originated in the minds of active UK lawyers, supported by their Immigration Law Practitioners’ Association (ILPA). Their activities also resulted in the provision on self-employed Turkish citizens in the EEC-Turkey association law were taken seriously (in Savas, Tum & Dari and Tural Oguz) by the Court and, subsequently in Member States. The AIRE Centre (Advice on Individual Rights in Europa) demonstrated how an NGO can stimulate test cases in Luxembourg. Since 1993, this London based organisation provided legal assistance and acted as party, intervenor or amicus curiae in more than hundred cases on human rights or migration before both European courts (for instance, the AIRE Centre acted as amicus curiae in the case on the border gate around Melilla, which resulted in ECtHR 13 February 2020, app. 8675/15 (N.D. and N.T. v. Spain), see point 100 and 160-163), and among those are ten cases before the Court of Justice on free movement or on Dublin since 2010.

Leading handbooks on EU migration law or on the EU Charter of Fundamental Rights written or edited by UK academics such as Cathryn Costello, Elspeth Guild and Steve Peers, will be gratefully used by lawyers and judges in the EU long after Brexit. The influence of almost five decades of membership of the same legal order cannot be brushed away, however gladly some politician would desire.

The greater the scope of the level playing field agreed in the future agreements between the EU and the UK, the greater the chance that EU law will remain a voluntary or compulsory subject at British law faculties, if only because people, businesses and institutions in the UK will continue to have to deal EU law rules. It will be for the lawyers in the remaining Member States to honour and profit from the contributions of their British colleagues, until the time is right for a new rapprochement.

Photo credit: Unlock

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