Creating procedural obligations under EU law: a way forward to enhanced protection of fundamental rights in the field of migration?

 

Opinion of AG de la Tour in Joined Cases C, B (C‑704/20) and X (C‑39/21)

Alicja Słowik, Assistante de recherché, Centre d’études juridiques européennes (CEJE), Université de Genève

Photo credit: Abouttt, via Wikimedia commons

 

Striking a fair balance between the principle of national procedural autonomy and the necessity to guarantee effective judicial protection of rights derived from EU law has never been an easy task for the European Court of Justice (‘the ECJ’/’the Court’). Yet, the task becomes particularly complex when what is at stake is effective judicial protection of rights of fundamental nature.  How could the concern for protection of EU fundamental rights affect the application of national procedural rules? Can national rules limit the power of the judge to assess the lawfulness of detention of foreign national or would such a limitation lead to serious encroachment on the fundamental right to liberty? The recent Opinion of AG Jean Richard de la Tour in the Joined cases Staatssecretaris van Justitie en Veiligheid v. C, B (C‑704/20, ‘Case C, B’) and X v. Staatssecretaris van Justitie en Veiligheid (C‑39/21, ‘Case X’) concerning the issue of ex officio review of detention measures provides for precious insights on the possible answers to these questions.

 

Legislative background and facts of the Joined cases

The two Joined cases at hand concern the scope of powers of national judges to examine the lawfulness of detention of third country nationals. In EU law, such a detention may be exceptionally imposed with regard to asylum seekers or migrants staying illegally on the EU territory. Articles 15 to 17 of the Return Directive, 8 to 11 of the Reception Conditions Directive and Article 28 of Dublin III Regulation provide for legal basis and conditions pertaining to detention. It is thus by reference to these provisions that the judge examines the lawfulness of detention of third country nationals (‘TCNs’).

In the Netherlands, detention of foreign nationals is governed by administrative procedural law which does not allow national courts to examine the conditions of the lawfulness of detention of their own motion (ex officio). This means that it is impossible for a national judge to review detention measure on the grounds other than those relied on by the foreign national during the proceedings. Moreover, the judge cannot release the detainee even after having found that the detention is unlawful on grounds different than those put forward by the person concerned. The preliminary questions addressed by two Dutch jurisdictions: the Council at State (Raad van State) and the District Court in the Hague (Rechtbank Den Haag) related to the problem of compatibility of Dutch legislation with EU law, especially, with the right to an effective remedy and right to liberty.

The first case, C and B, concerned detention measures imposed with regard to two TCNs. The first individual concerned was put in detention for the purpose of determining the elements necessary for the examination of his application for international protection. The second applicant was placed in detention with the aim of securing his transfer to Italy in accordance with Dublin III Regulation. Both contested the detention orders before the District Court which ordered their release on the ground relating to the non-respect of the obligation of due diligence. Importantly, the argument concerning the non-respect of due diligence obligation was not raised by the detainees during the proceedings.

The Secretary of State brought an appeal against the judgements ordering the release of two foreign nationals before the Council of State. The two TCNs argued that, by virtue of EU law, the national jurisdictions had a duty to examine the lawfulness of detention measure of its own motion. Yet, as explained above, such an ex officio review of detention was impossible to perform under the Dutch legislation. In these circumstances, the Council of State decided to ask the ECJ for clarifications on the interpretation of Article 15, paragraph 2, of Return Directive and Article 9 of the Reception Conditions Directive in light of Article 6 of the Charter of Fundamental Rights of the EU (‘the Charter’) which guarantees the right to liberty.

The second case, X, concerned the application of the Return Directive. A TCN had been put in detention on grounds relating to the maintenance of public order. The applicant challenged the decision on the continuation of detention before the District Court. The judge again had doubts on the compatibility of Dutch legislation prohibiting the ex officio review of detention with EU law.

 

Opinion of the Advocate General

At the very beginning of the Opinion, the AG noticed that the role of the judge does not differ much depending on whether he assesses the lawfulness of the detention order or of the order on the continuation of detention (§68). Further, relevant provisions of Return Directive, Reception Conditions Directive and Dublin III Regulation embody the same key principles concerning the power of the judge called upon to assess the lawfulness of detention (§68). For this reason, it was possible to jointly examine the compatibility of Dutch legislation with regard to all these three instruments.

Subsequently, the AG presented briefly a set common rules concerning the judicial control of detention orders. He recalled in particular that detention of the TCN ordered by an administrative or judicial authority shall be subject to judicial review (§70). The requirement of judicial control serves primarily to protect the TCN against arbitrary deprivation of liberty (§72). Nonetheless, the rules concerning the extent of judicial control have not been harmonised so far at the EU level. The modalities of such a control are therefore covered by the principle national procedural autonomy of Member States (§73). The national legislation determining the extent of judicial control must nonetheless comply with the principles of effectiveness and equivalence. (§75).

Focusing on the assessment of  compatibility of national rule with the principle of effectiveness the AG briefly referred to the so called ‘procedural rule of reason test’ . According to this test, while examining the question of whether national procedural rule renders the application of EU law ‘impossible’ or ‘excessively difficult’, the judge must take account of ‘the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies’ (see eg. XC and Others, C‑234/17, §49). In that context, must be considered, in particular, ‘the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure’ (XC and Others, C‑234/17, §49)

Yet, this test was not of particular relevance in the cases at hand, as the AG indicated that the ‘effectiveness requirement’ would not be satisfied if a procedural rule at stake was incompatible with the right to an effective judicial protection enshrined in Article 47 of the Charter (§78). The central problem in the Joined cases boiled down to the question of whether a national rule prohibiting ex officio assessment of conditions pertaining to detention infringed the right to an effective judicial protection.

The Court has ruled on different occasions that the principle of effectiveness ‘does not preclude a national provision which prevents national courts from raising of their own motion an issue as to whether the provisions of Community law have been infringed, where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves’ (Van Schijndel, C-430/93 and C-431/93,§22). Yet, none of the so-far examined situations on ex-officio application of EU law has dealt directly with protection of the right to liberty guaranteed by Article 6 of the Charter (§80).

Relying on Mahdi case (C-146/14 PPU), the AG recalled that the Court assessing the lawfulness of the detention measures ‘must be able to take into account both the facts stated and the evidence adduced by the administrative authority and any observations that may be submitted by the third-country national’ (Mahdi, §62). He then drew attention to the paramount importance of the right to judicial protection in guaranteeing respect of the right to liberty (§86). Detention ordered on the basis of Return Directive, Reception Conditions Directive or Dublin III Regulation must respect the principle of proportionality and fundamental rights of the individuals concerned (§87).   

Plunging into the analysis of possible infringements on fundamental rights, the AG observed that the limitation on the scope of judicial control of detention measures constitutes a restriction of fundamental right to a remedy which shall be examined under Article 52 of the Charter. He underlined that the very essence of the right to effective judicial protection as well as protection against arbitrary detention would be infringed if the judge could not release a person detained even after having come to conclusion that detention was illegal (§91).

The impossibility for a judge to examine all relevant issues concerning the lawfulness of detention, may result in person being detained in situation where the conditions pertaining to detention are not (or are no longer) met (§92). This is inadmissible given that Article 15, paragraph 2, of the Return Directive and Article 9, paragraph 3, of the Reception Conditions Directive state clearly that when the detention is unlawful, the person concerned shall be released immediately. The release shall be thus an immediate consequence of finding that detention is illegal (§92).

The AG insisted again on the importance of the right to liberty and underlined that national procedural rules shall not allow doubts as to the lawfulness of detention to persist (§95). In a nutshell, the jurisdiction called upon to assess the lawfulness of detention order must control respect of general and abstract rules setting the conditions and modalities of detention. The limitation on the possibility for a judge to examine the issues and arguments which were not raised by the parties does not respect the principle of effectiveness. The Dutch legislation is incompatible with Article 15 of the Return Directive, Article 9 of the Reception Conditions Directive and Article 28 of the Dublin III Regulation read in conjunction with Articles 6 and 47 of the Charter.

 

Comments

The Opinion of AG de la Tour deserves attention for several reasons. Most importantly, the Joined cases would be the first occasion for the Court to directly adjudicate upon the question of an obligation to apply EU law ex officio in the context of detention of TCNs. Should the Grand Chamber follow the solution proposed by the AG, the judgement will be another example of the increasing influence of EU law on shaping national procedural rules in the field of migration (I). Furthermore, the Opinion sheds more light on the potential of EU fundamental rights to play a key role in setting limits of national procedural autonomy (II). 

 

Obligation of ex officio review of detention: a sign of ‘progressive revolution’ in the ECJ’s approach towards national procedural rules?  

The AG underscored the unprecedented nature of the subject-matter in the cases at hand.  This will be the first time when the Court will rule on the obligation of ex officio application of EU law in the context involving the application of the fundamental right to liberty (§1 and §80). As mentioned above, the Court has already stated that, in principle, national courts do not have obligation to raise points of EU law of their own motion. There are some exceptions to this rule, for instance in the field of consumer law (see eg. case Mostaza Claro, C-168/05). The AG proposed that in the situations concerning fundamental right to liberty the judge must proceed to assessment of all conditions pertaining to detention of his own motion, establishing thus a new exception to the rule on the lack of obligation to apply EU law ex officio. Importantly, the AG referred to obligation rather than a simple possibility for a national judge to review the lawfulness of detention on the grounds different from those relied on by the parties. In this regard, he opted for a more intrusive interference with the national procedural rules.

The creation of positive obligations and direct intervention into national procedures are a fairly rare phenomenon in the ECJ’s case law which has nonetheless become more visible in the recent years, at least as far as the field of migration and asylum law is concerned. Suffice it to mention for instance Országos (C‑924/19 PPU and C‑925/19 PPU) case in which Court stated that the national judge had to declare himself competent to examine detention measures decided by administrative body even though he did not have such a power under national law. In that judgement, the right to fundamental remedy enshrined in Article 47 of the Charter as well as in the relevant provisions of secondary law (Article 15 of Return Directive and Article 9 of Reception Conditions Directive 2013/33) played an eminent role in the Court’s reasoning.

Importantly, the developments regarding the significance of the right to an effective remedy in protection of procedural rights of migrants are not confined to the cases dealing with detention: they are also present in other areas of EU migration law. In a relatively recent case H. A. v État belge (C‑194/19)  concerning the scope of the right to a judicial remedy as guaranteed under Dublin III Regulation, the Court ruled that, when examining the lawfulness of transfer decision, the national judge shall be able to take due account of circumstances subsequent to the adoption of that decision. These findings were similarly the fruit of generous interpretation of the right to an effective remedy and a limited application of the doctrine of national procedural autonomy. Earlier, in the context involving the application of the Visa Code, building on the potential of Article 47 of the Charter, the Court interpreted the provision on the right to bring appeal against the refusal of visa (Article 32(3)) as requiring the establishment of judicial (and not solely administrative) remedy (El Hassani, C‑403/16). On several occasions, Article 47 of the Charter has thus served as a tool for unearthing the ‘creationist’ side of the principle of effective judicial protection which allows the Court to readjust or directly establish new remedies for the protection of rights guaranteed by EU law.

Given that, in the past, the Court directly conferred to national judges’ power to review the legality of detention (Országos), the imposition of duty to raise the point of EU law of their own motion would not constitute a revolutionary move in the Court’s case law on national procedural rules. Yet, cumulatively, case law on procedural rights and obligations is a significant step forward for enhanced protection of fundamental rights which may lead to renewal of the Court’s approach towards the doctrine of national procedural autonomy.

 

Concern for protection of fundamental rights as a key rationale for further limitation of national procedural autonomy in EU migration law

The principle of national procedural autonomy has traditionally been subject to requirements resulting from the principles of equivalence and effectiveness, subsequently complemented by the principle of effective judicial protection currently enshrined in Article 47 of the Charter. It has been argued that analysis focused on the respect of Article 47 of the Charter had a vocation to replace the ‘traditional test’ of effectiveness. The present opinion does not provide much clarification on the blurred relationship between effectiveness and effective judicial protection. The principle of national procedural autonomy, effectiveness and the ‘procedural rule of reason test’ are the starting point of the AG’s examination of compatibility of national legislation with EU law. Yet, very quickly the focus shifts towards the assessment of the effects the said legislation may have on the protection of fundamental right to liberty and right to a judicial remedy. All in all, fundamental rights-based analysis trumps the ‘procedural rule of reason test’. Whereas Article 47 constitutes a natural benchmark for assessing the compatibility of national procedural rules with EU law, the extensive reliance on the fundamental right to liberty in the AG’s reasoning illustrates a new trend in the field.

At the very beginning of his Opinion, AG de la Tour underlined that the importance of the right to liberty and the essential role of judges in protection of the latter justify a certain distrust (‘une certaine méfiance’) towards national procedural rules limiting the powers of judges (§1). The reasoning of the AG conspicuously marked by the concern for protection of the fundamental right to liberty (see in particular §86 and following).

On many occasions the AG refers to Article 6 of the Charter and to the provisions of secondary law concerning the detention conditions. The intrinsic links between the effective access to judge and adequate protection against arbitrary detention underlie a more demanding approach towards national procedural rules. The prominent role of the right to remedy in the protection of fundamental right to liberty justified the creation of obligation for national judge to examine the respect of all detention conditions of his own motion.

The Opinion illustrates that the concern for protection of fundamental rights may significantly affect the process of drawing the boundaries of national procedural autonomy. Presumably, in the future, the Court will leave less margin of manoeuvre for the application of national procedural rules in situations where the protection of EU fundamental rights is at stake. Such a stricter approach towards national rules could have been observed in previous case law. In the aforementioned cases Mahdi and Országos, the extension of powers of national judges served primarily as a mean of protection of fundamental right to an effective remedy and right to liberty. In those two cases however, the Court relied mostly on the sources of secondary law, making only minor references to Article 6 of the Charter. By contrast, the latter provision, together with Article 47 of the Charter constituted the very basis of the AG’s analysis. The Opinion confirms that the limitation of constantly shrinking area of national procedural autonomy may result not solely from the large scope Article 47 of the Charter but also, the necessity to protect substantive fundamental rights such as the right to liberty.

Finally, it is worth noting that, as the Council of State accurately pointed out (§39), ex officio examination of the conditions of lawfulness of detention has not been so far imposed by the European Court of Human Rights (‘ECtHR’). Assuming that the Court will follow the solution proposed by the AG, the standard of protection of fundamental right to liberty and right to an effective remedy under EU legal framework will be arguably higher than the one guaranteed within the system of the European Convention of Human Rights. In this regard, the joined cases at hand have potential to become another example of judgement in which the CJEU did not hesitate to go further than the ECtHR in terms of protection of basic freedoms of migrants.

It will be interesting to observe whether the Grand Chamber’s judgement in C, B and X will be, alike the AG’s Opinion, centred around the concern for protection of fundamental rights and whether such an approach would result in a more thorough review of national procedural rules. Should the ECJ decide to impose a new duty to national judges, the judgement will confirm the tendency in recent case law on adjusting the application of national procedural rules for the sake of protecting the fundamental rights. Independently of the of the outcome of the judgement, the Opinion of AG de la Tour confirms that Article 47 of the Charter has already become as a powerful tool for boosting effective judicial protection, in particular in situations where it is relied upon for purposes of securing the respect of substantive fundamental rights. 

 

 

Continue reading Creating procedural obligations under EU law: a way forward to enhanced protection of fundamental rights in the field of migration?

Giving Back Control: British travel to the EU after Brexit

 

Professor Steve Peers, University of Essex*

*linked to research on the upcoming 5^th edition of EU Justice and Home Affairs Law

Photo credit: John Fielding, via Wikimedia Commons

 

One of the most Blindingly Obvious Things in the history of Blindingly Obvious Things is that one consequence of the UK leaving the EU is that travel to and stay in the EU by British citizens is now different – the obvious corollary of travel to and stay in the UK by EU citizens being different, as the Leave campaign specifically demanded.

In light of current disputes about delays crossing the border, what exactly does that mean in practice? The following blog post addresses the issues in Q and A format.

What were the previous rules?

UK citizens going to the rest of the EU, and EU citizens coming from the rest of the EU, were covered by EU free movement law – see Articles 4 and 5 of the EU citizens’ free movement Directive. This allowed travel across the border in both directions on the basis of showing an identity card or passport (although non-EU family members, while benefiting from free movement law generally, had to get a visa in some circumstances). 

This overlapped with the Schengen rules on external borders – dating back originally to the Schengen Convention of 1990 agreed between several Member States, applied from 1995, integrated into EU law in 1999 when the Treaty of Amsterdam came into force, and currently set out in the Schengen Borders Code, 2016 version. (Amendments to the Code have since been adopted or proposed).

The Schengen rules do not, as some may think, limit themselves to abolishing internal border controls between Schengen States. Because the abolition of such controls means that whoever enters (say) Italy from outside Schengen could travel to Austria without being checked at the border between those countries, there are common rules on external border controls, too. (There are also common rules on short-stay visas, criminal law and police cooperation, and a joint database, the Schengen Information System)

For EU citizens crossing the external borders (UK/France, for instance), the Borders Code requires a simplified check on their identity and the validity of the document (see Article 8(2)), including a check on security databases (see the 2017 amendment to the code, which requires further checks: the application of this delayed some travellers a few summers back).

The UK’s departure from the EU not only took it out of the scope of EU free movement law. Brexit also necessarily means that the UK is now treated as a non-EU country under the Schengen rules – because that is the status that the UK wanted to have. More on what that means in concrete terms in a moment.

Which countries apply these rules?

Free movement law applies not only to EU Member States, but also to Norway, Iceland, and Liechtenstein, which have signed up to those rules as part of the European Economic Areatreaty, and to Switzerland, which signed up to similar (not currently identical) rules as part of a package of treaties with the EU.

The scope of the Schengen rules is more complicated. First of all, the immigration law part of the Schengen rules does not apply to Ireland (apart from rules on carrier sanctions and penalisation of smuggling), although Ireland has signed up to the criminal law parts of Schengen. Ireland has opted out of the immigration law part of the Schengen rules due to the Common Travel Area with the UK, as provided for in a Protocolattached to the EU Treaties. The Protocol still applies despite Brexit, and there is no sign that the Irish government is interested in fully joining Schengen, probably because that would mean border checks on the land border with Northern Ireland (unless Northern Ireland also joined Schengen, but it is hard to imagine any British government agreeing to that).

Among the other EU Member States, Schengen rules do not yet fully apply to Romania, Bulgaria, Croatia and Cyprus – although the external borders parts do apply already (see the accession treaty with Croatia, for example). Extending Schengen fully needs unanimous agreement of the existing Schengen States, which has been slow in coming (although a decision on extension to Croatia could be adopted soon). And Denmark applies Schengen rules, but in a legally different way from other EU Member States.

As for non-EU countries, Norway, Iceland, Liechtenstein and Switzerland have agreed treaties associating themselves to the Schengen rules. As with free movement law, this association is reciprocal – ie Norway or Switzerland must also let EU citizens visit and stay on the basis of free movement law, and drop border controls with Schengen States, not only the other way around.

Finally, the UK and the EU are negotiating a form of association of Gibraltarto Schengen. It remains to be seen whether those talks will be successful, and if so what will be agreed.

Is stamping British passports a fetish of Anglophobic, Brexit-hating, surrender-loving, French freaks?

No.

Stamping the passports of non-nationals is a normal part of immigration control worldwide. For France, and other Schengen countries, it’s an obligation in the Schengen Borders Code, Article 11:

1.   The travel documents of third-country nationals shall be systematically stamped on entry and exit. In particular an entry or exit stamp shall be affixed to:

(a)	the documents, bearing a valid visa, enabling third-country nationals to cross the border;
(b)	the documents enabling third-country nationals to whom a visa is issued at the border by a Member State to cross the border;
(c)	the documents enabling third-country nationals not subject to a visa requirement to cross the border.

 

(There are exceptions, but they are fairly limited). The UK having chosen to become a non-EU country without free movement, British citizens are necessarily covered by the stamping obligations after the end of the Brexit transition period. The code makes clear (see Article 8(3)) what the point of the stamp is – to enable checks as to whether the passport holder has not overstayed the permitted period of stay.

Some Brexit supporters had argued for a continuing close relationship with the EU post-Brexit, in which case stamping of documents would not have applied (see Article 2(6) of the Code, which defines ‘third-country nationals’ in the Code as not applying to citizens of countries with a free movement agreement with the EU). But those Brexit supporters who wanted to end free movement, and who argued explicitly against treating EU citizens coming to the UK better than non-EU citizens coming to the UK, won that argument. So it is hypocritical for them to complain about the obvious reciprocal consequence: that the EU is now treating UK citizens coming to the EU the same as other non-EU citizens coming there.

What are the other main features of the Schengen borders rules?

Leaving aside the bits on abolishing internal border checks, which are subject to many possible exceptions (Articles 22-35), the main points, besides stamping of documents, are:

-          the code is ‘without prejudice’ to free movement law, as well as the ‘rights of refugees and persons requesting international protection, in particular as regards non-refoulement’

-          Member States must comply with fundamental rights when they implement it

-          external borders must be crossed at official places and times, with penalties if this is breached (again ‘without prejudice’ to ‘international protection obligations’; note that Article 31 of the Refugee Convention provides for refugees crossing borders without authorisation, subject to certain conditions)

-          entry conditions: 90 out of 180 days stay in the Schengen area as a whole; justifying the purpose of the intended stay and having sufficient subsistence; a visa if EU law requires it; not being the subject of an alert in the Schengen Information System; not being a threat to public policy etc

-          details of the border checks for EU and non-EU citizens (which are more stringent)

-          separate lanes for EU and non-EU citizens

-          border surveillance to try to stop unauthorised entry

-          refusal of entry if conditions are not met; there is a right to appeal a refusal

-          general rules on cooperation between Member States

There are limited exceptions to some of these rules. There’s also a rule on sufficient resources for border checks (Article 15), which could be relevant to France/Dover:

Member States shall deploy appropriate staff and resources in sufficient numbers to carry out border control at the external borders, in accordance with Articles 7 to 14, in such a way as to ensure an efficient, high and uniform level of control at their external borders.

Does Brexit mean that UK citizens can’t go to the EU courts?

No. Access to the EU courts is not limited to EU citizens. There are many cases brought by non-EU citizens about the application of EU immigration and asylum law that go to the CJEU. Indeed, I’ve been slogging through them for the latest edition of my book. You can find a compilation of the case law on the 2016 version of the Borders code here.

As with other EU law, the main way that an argument about EU immigration and asylum law gets to the EU courts is by disputing the application of that law in the national courts (ie, challenging a German border guard’s refusal of entry in a German court). Any national court or tribunal may then send questions about the interpretation or validity of that EU law to the CJEU.

It’s also possible to sue the EU institutions or agencies (but not the Member States) directly in the EU General Court. Unlike (say) competition law or trade mark law, this has limited relevance to immigration or asylum law, because it’s mainly national authorities that implement this field of EU law on the ground. There are cases pending against Frontex, the EU borders agency – but these are about its alleged role in pushback of migrants at sea, not ordinary border checks.

Does the EU have immigration databases?

Hell, yes. The EU is the poster child of the border security/industrial complex. In particular it currently has the Schengen Information System (updated in 2018, but the update is not applied yet). The SIS contains not only security alerts (such as being subject to a European Arrest Warrant) which apply to and are checked for everyone, but also immigration alerts, which apply only to non-EU citizens, now including Brits (but not only Brits!). These are issued following entry bans for breaches of immigration law or criminal law.

The 2018 changes will link this system to the issue of entry bans under the Returns Directive, which regulates the expulsion, detention etc of non-EU citizens who are not authorised to stay, now including Brits (but not only Brits!!).

In the next year or two the EU is likely to roll out its entry-exit system (which will keep a record of non-EU citizens coming in and out of the EU) and its travel authorisation system, ETIAS (like the US ESTA, a requirement for non-visa non-EU nationals to get an advance authorisation to travel – similar to the idea of a visa but not technically a visa; it will be simpler and cheaper to get and apply for longer).  Both will apply to Brits, but are not being rolled out – despite absurd suggestions to the contrary – solely for Brits(!!!), or because of Brexit. The entry-exit system will in principle replace stamping of documents at the borders by e-gates, but whether that speeds things up or slows things down remains to be seen.

There’s also the Visa Information System (revised in 2021, but the revised system is also not yet applicable). It was originally for applicants for Schengen visas (ie short-term visas), so doesn’t apply to Brits, but the revised version will apply to Brits (but not only to Brits!!!!), as it will cover long-term visa and residence permit holders.

The Eurodac system keeps a record of asylum seekers and irregular border crossers. It is – you guessed it! – being revised and extended, so will also (among other things) apply to those on the territory without authorisation, which could include post-Brexit Brits (but not only Brits!!!!!).

These databases apply to Schengen States only, except Eurodac applies to all Member States and Schengen associates. Ireland participates in SIS criminal law alerts (but not immigration alerts), and the Member States not fully in Schengen have some access to these databases too.

Tl;dr: as with the Hulk, Brits won’t like the EU immigration control system when it’s angry. 

Could the UK reach a special deal with EU on border control?

The EU’s border control law has special rules for European micro-states, and local border traffic with neighbouring Eastern European states, so it’s not impossible. You can see an example of simplified border checks, in spite of underlying immigration control, at the Canada/US border, for instance. But the EU has never before agreed exemptions from its core border control laws with a large non-EU country.

And would the UK – at least under its outgoing and upcoming Prime Minister – be interested anyway? Neither side suggested any such thing during the Brexit talks, and the UK has moved away from the sort of simplification the EU side would ask for, as it is no longer accepting ID cards for EU citizens at the border (there’s an exception for those covered by the withdrawal agreement). It’s very hard to believe that the EU would agree such a thing unilaterally, if at all – and it’s not only Leavers who fantasise that nevertheless it would or should. And then they wake up.

What about Brits living in the EU?

Those Brits in the EU before the end of the Brexit transition period may – like EU citizens in the UK at that point – be covered by the withdrawal agreement, which I annotated here. 

Otherwise Brits in the EU are in the same position as other non-EU citizens living in the EU. If they have a long-term visa or residence permit, they can travel to other Member States for 90/180 days (see Article 21 of the Schengen Convention). They will not be subject to the entry-exit law or the travel authorisation law. They can be subject to immigration alerts in the Schengen Information System, subject to complex rules about consultation between Member States (amended in 2018). When crossing external borders, they are not subject to all the conditions of entry. If they are the family member of an EU citizen who has moved between Member States, they are covered by EU free movement law: the immigration law equivalent of marrying a billionaire. But complicated things could happen if that family relationship breaks down before they obtain their own permanent residence permit.

What about the rest of EU immigration and asylum law?

That’s enough for today. But I summarised the rest of EU immigration and asylum law when the EU Commission tabled its proposed Immigration and Asylum Pact in September 2020 – so see that blog post, with further links. The main development since then is that the EU has adopted a new version of its Blue Card law on admission of highly-skilled non-EU workers.

At least tell me if Brits can apply for asylum in the EU?

Brits are no longer subject to the quasi-ban on EU citizens applying for asylum in other Member States – because they are no longer EU citizens.  But if you believe that, as things stand, Brits are likely to be considered to meet the definition of ‘refugee’ in the Refugee Convention(and EU asylum law) – having a well-founded fear of persecution on grounds of race, religion, nationality, political opinion, or particular social group – then imagine me shaking my head in Godwin’s Law. 

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Breaching International Law in a General and Far-Reaching Way: The Northern Ireland Protocol Bill

 

Colin Murray, Reader in Public Law, Newcastle Law School

Photo credit: Dom0803, via Wikimedia Commons

 

In September 2020 Brandon Lewis set the tone for the UK’s interactions with the Northern Ireland Protocol by admitting that the Internal Market Bill, about to be introduced into Westminster, by admitting that the proposed legislation would breach the UK’s international commitments under the Withdrawal Agreement in a ‘very specific and limited way’. Ahead of the publication of the new Northern Ireland Protocol Bill, Lewis has been determined not to make the same mistake twice and has insisted that it ‘won’t break international law’. The Bill does, and we’re a long way beyond the specific and limited.

 

The Protocol and Brexit

The UK Government insists that the Protocol cannot continue in its current form as it does not command cross-community consent within Northern Ireland. That Brexit did not command cross community consent and the Protocol operates to mitigate some of the impacts of Brexit on Northern Ireland is written out of this analysis. The precise nature of the breach of the 1998 Agreement is, at best, vague. The UK Government has hitherto actively defended litigation against the Protocol on the basis that it is compliant with the 1998 Agreement. Cross-community consent, moreover, attaches under the Agreement and its implementing legislation to decisions within the Northern Ireland Assembly, not to international treaties concluded by the UK Government.

The UK Government’s other common refrain is that the Protocol it agreed is not the problem, but rather that the EU has been so dogmatic in the application of its trade and goods regulation provisions that it has become unworkable. This position, prominent in the legal position accompanying the new Bill, is unsustainable. The EU has repeatedly agreed reworks to the operation of the Protocol as concluded in 2019, in areas including state aid, medicine supply and in extending grace periods covering certain sectors. If the Protocol is more challenging to operate in practice than some had at first hoped, this is in large part the result to the limited nature of the Trade and Co-operation Agreement (and in particular the UK rejecting maintaining alignment with EU food and agriculture standards). The UK Government’s choices are entirely bound up in the supposed ‘peril that has emerged’ for Northern Ireland.

Brexit has brought with it inevitable dislocations for the Northern Ireland economy, and few dispute that the Protocol could be improved in its operation (a suite of EU reform proposals have been on the table since October 2021, and it has moved unilaterally to address highly contentious issues around medicines). But there is very little hard data in the public domain on the nature of the supposed divergences which have resulted from the Protocol, as opposed to Brexit itself, and even if there was, this would be a reason to trigger the trade protection provision within the Protocol, Article 16, rather than to seek to abandon particular obligations. It is untenable for the UK Government to invoke the doctrine of necessity, based on a legal position that it ‘has no other way of safeguarding the essential interests at stake than through the adoption of the legislative solution’, when its own conduct has contributed to the situation, and when it has made no effort to use the specific mechanisms available within the Protocol for addressing such societal concerns. 

Every time the possibility of triggering Article 16 has come up, since it was prominently raised in the July 2021 Command Paper, the UK Government has drawn back. The Owen Patterson affair, Party-gate and Putin’s invasion of Ukraine all undoubtedly disrupted this agenda. Equally, however, the limitsof Article 16 loomed large; responses using this provision would themselves amount to a breach of the Protocol if they were not proportionate to substantive problems. Article 16 was not a magic wand capable of sweeping away inconvenient aspects of the Protocol. For a UK Government committed to aggressively diverging from EU standards the Protocol presents a pressing problem; every one of its own divergences will harden barriers to trade in the Irish sea. It would like to achieve far reaching Protocol reform on its own terms to avoid that outcome. Ministerial talk of ‘safeguarding’ the 1998 Agreement is nothing more than a superficial pretext.

The repeated failures to trigger Article 16 in the last year (involving presenting the data and crafting a targeted response within its terms) nonetheless left the Democratic Unionist Party (DUP) more exposed and incurred a debt to their thwarted expectations. The party, as a result, collapsed the Northern Ireland Executive in February and have been refusing to engage in any form of power-sharing since last month’s Assembly elections. It is now so distrustful of the UK Government’s position that they remain sceptical of reengaging with power-sharing processes in Northern Ireland even with the publication of the new legislation, even as the Foreign Secretary fumes that they should now ‘get on with it’.    

 

The Protocol Bill

The Bill, on its face, would appear to be everything that the DUP could ask for and more. But it is precisely because it is so far reaching, and so reliant on placing powers into the hands of ministers, that calls into question whether it can make it onto the statute book in its present form. At present, the EU law obligations which remain applicable to Northern Ireland under the Protocol flow directly into domestic law by the ‘conduit pipe’, to use the language of the UK Supreme Court in Miller, of section 7A of the European Union (Withdrawal) Act 2018. Clause 2 of the new Bill excludes a swathe of Protocol provisions from the scope of section 7A, cutting the pipe. This does not, of itself, absolve the UK of its international obligations. The EU can continue to take action against the UK for this breach of the Withdrawal Agreement. But it severs the connection between these Protocol obligations and domestic law.  

The Protocol provisions directly excluded from the operation of section 7A include all of its provisions relating to the movement of goods, including customs, (clause 4) and the regulation of goods (clause 8), state aid rules (clause 12) and the enforcement role of the Court of Justice of the European Union (clause 13). In each of these regards, ministers are given far-reaching powers to make new domestic law, enabling the UK Government to substitute its own scheme in place of the Protocol’s rules. Clause 22 confirms that ministers can make regulations under this Act to make any provision which could be made by an Act of Parliament. The supposed limitation to this power, repeated throughout the Bill, is that the regulations are such that the minister ‘considers appropriate’ in connection with the Protocol, the broader Withdrawal Agreement or this legislation. This is anything but a limited and specific breach of the UK’s international commitments; it utterly traduces the Protocol. Moreover, the powers granted to ministers are remarkably broad. Powers in the same terms faced the most strenuous opposition on grounds of side-lining Parliament when they were included in the Internal Market Bill as proposed, and there is no reason to think that the House of Lords, in particular, will be any more receptive to these powers in this context.

Clause 15 of the Bill purports to protect the operation of the Protocol’s provisions on human rights and equality (Article 2), the Common Travel Area (Article 3) and North-South Co-operation (Article 11). Ministers do not have the power to add these provisions to the Bill’s stated exclusions from the operation of section 7A. The Protocol’s human rights and equality commitments rely upon the operation of Court of Justice jurisprudence which explains how the relevant EU law functions. Thus, when clause 14 of the Bill sets out broad exclusions to domestic courts drawing, within the terms Article 13 of the Protocol, on Court of Justice jurisprudence or general principles of EU law, it does so only with regard to excluded provisions. This would appear to be an attempt to limit the number of fights the Bill starts, and to insulate the UK Government from accusations that it is undermining these high profile (but hitherto uncontroversial) arrangements. But it is irreconcilable with clause 20, which asserts (with no stated protection for Article 2) that courts and tribunals are not bound by ‘any principles laid down, or any decisions made, on or after the day on which this section comes into force by the European Court’. The overriding effect of this general exclusion is remove the courts in Northern Ireland obligation to interpret the provisions of the Protocol ‘in conformity’ with relevant Court of Justice case law. The Bill claims to protect the Protocol’s human rights and equality provisions in one clause, but undermines their substantive operation in another.  

The Bill’s explanatory notes contain a commitmentthat ‘the UK Government will write to the devolved administrations to seek consent to legislate in the normal manner’. This, of course, is a hollow commitment when Stormont is not functioning. And even if it was functioning, the track record of Brexit legislation establishes that the UK Government is willing to ignore the position of a clear majority of the Northern Ireland Assembly who have expressed their opposition to these terms. Clause 15, moreover, does not protect the operation of the Article 18 “Stormont lock” from being excluded from domestic law by ministers if there is a chance that majority support for the Protocol in the vote due in 2024 would embarrass the Government (not one of the permitted purposes, but they are so broadly drawn as to effectively allow for ministers to pursue that end under another pretext).

Which brings us to the negotiated settlement clause. Clause 19 acknowledges that a new agreement can be made between the UK and EU which modifies, supplements or replaces the Northern Ireland Protocol, in whole or part. In those circumstances ministers can make regulations to give effect to that Agreement. Furthermore, under clause 15, this can include turning back on the conduit pipe between the Protocol and domestic law. This whole spiralling crisis can be disappeared as swiftly as a bad dream in Dallas. But in UK constitutional terms, all of this is stage managed by the Government. Just as the UK Government has finally accepted more extensive trade treaty scrutiny arrangementsin recent weeks, this Bill pointedly excepts any reworking of the Protocol from them. Parliament, under this Bill, will be giving ministers the power to immediately make regulations to give effect to such an Agreement without first jumping through processes like public consultations. 

 

The costs of breaking the Protocol

The EU has a range of options open in reaction to the Bill. It can institute infringement proceedings before the Court of Justice of the European Union in light of the provisions at issue and adopt its own targeted responses in retaliation for the breach. It can also seek to propose further measures to address the problems it has identified with the Protocol. The problem for the EU, however, and ultimately for the UK Government, is that Brussels is unlikely to want to be seen to facilitating this mode of relations by the UK.

The costs of this Bill, however, extend beyond the EU’s immediate reaction. Johnson might command a large Commons majority, but this is less reliable after the scale of last week’s vote of no confidence. The Conservative parliamentary party is likely to become even more fractious if much of its time over the coming months is spent in a fight over the Protocol when there are so many issues of urgent concern. A Lords majority are all but certain to use its powers to delay proposals for a full parliamentary session, especially in light of the consequences for the UK’s international standing of its flouting of such commitments and the possibility that, in seeking to placate Unionism, Northern Ireland’s other parties will become alienated from power sharing.

This generates a considerable presentation problem for Johnson; the Bill must appear sufficiently far reaching to assuage the DUP and sections of his own back benches, but not so extreme as to galvanise parliamentary opposition and to provoke a severe response from the EU. Hence the disconnect between the UK Government’s expressed position that the Protocol ‘is clearly undermining the Belfast Good Friday Agreement’ and the Prime Minister’s insistence that these new proposals amount to ‘a relatively trivialset of adjustments in the grand scheme of things’. The UK Government is breaching its international commitments, but it would rather other people say that than admit this reality.

 

Threats work?

Back in December 2020, the Internal Market Bill threat to part of the Protocol was withdrawnfollowing an Agreement in the EU-UK Joint Committee on how the Protocol would be implemented. In Brexit lore, only such tough actions yield results from the EU. And yet, the alternative of careful technocratic negotiation and full data exchange on goods movements by the UK remains a counter-factual scenario. Even after months of talks, there isn’t a clear public account of why the UK Government is rejecting the EU’s October 2021 proposals outright.

Picking fights with the EU energises Brexit’s most ardent supporters and bringing about this crisis point might thus be a way for the UK Government to sell an eventual compromise (they pushed as hard as possible to get changes). For the EU, having seen this before, this is not a pattern of engagement that it wants to encourage. Not only will Brussels perceive the risk that the UK Government will keep coming back for more, but why should it bail out Johnson with further compromises when it knows that his position is so weakened and it might soon have to deal with a successor?

The EU therefore appears to be biding its time; this legislation faces a long journey through Parliament (particularly in light of the likelihood that it will not pass the Lords without a year’s delay). It appears ready to recommence infringement proceedings against the UK and even to publish its own blueprint for Protocol reform. Any advance on the “express” channel and food and agriculture approach set out in the October 2021 proposals will take it very much into the “green/red” lane territory that the UK Government is discussing; the fabled landing zone. Johnson’s entire strategy is reliant on the EU not using the full range of reactions open to it in response to this threaton the basis that doing so would further destabilise Northern Ireland.

 

A bumpy landing, if a landing at all?

The risks in this approach are obvious. Too many actors need to accept contradictory messages at one time. The EU needs to watch the UK tear up an Agreement in front of its nose, but trust that Johnson is only doing what he is doing to bring the DUP back on board (that this legislation is all a bit of theatre before a compromise). The DUP, by contrast, have to accept that legislation so outlandish in its terms that it has no chance of making the statute book in the next 18 months without being significantly watered down, provides a basis for re-entering power sharing. They must be so enthralled by its scope that they ignore its unfeasibility.

Johnson’s weakness, moreover, encourages everyone else to manoeuvre around him. When it came to the “Stormont lock”, the main concession that Johnson gained from EU in 2019, Brussels had held off on offering such an arrangement to Theresa May when her own premiership appeared to be on its last legs. The Commission may have announced that a further package of reform proposals are coming, but they would have to be completely on board with Johnson’s choreography (and very confident in his position) to announce these plans ahead of the forthcoming by-elections.

Maybe some of the tensions which have built up in Northern Ireland around the Protocol will dissipate as a result of this Bill. Perhaps another compromise will be reached without it ever becoming law. But if it isn’t, and this legislation enters force in its current form, the prospects for EU-UK relations, for the stability of Northern Ireland, and for the executive dominance of the UK’s constitutional order will be invidious. And even in the best-case scenario, the current UK Government’s mode of engagement with any issue that involves Europe is set. We’re just waiting for the next crisis. 

 

Continue reading Breaching International Law in a General and Far-Reaching Way: The Northern Ireland Protocol Bill

It’s the end – but the moment has been prepared for: the CJEU confirms that UK citizens have lost EU citizenship

 

Professor Steve Peers, University of Essex

In today’s judgment, the CJEU has finally confirmed that UK citizens lost EU citizenship as a consequence of Brexit, following the earlier Advocate-General’s opinion, which I discussed here. (There are other pending cases on this issue – see my compilation of Brexit litigation – but there’s no reason to think that the CJEU would decide them differently).

The judgment is striking for the extent to which it dismisses arguments that British citizens have retained EU citizenship. It’s definitely the end of an era. And yet, it also contains foreshadowing of issues that will be relevant to the post-Brexit future relationship between the UK and the EU.

 

Summary of the judgment

The case concerned a UK citizen resident in France, who lost the right to vote in local elections following Brexit day (1 February 2020) as a consequence of no longer being a national of a Member State, and therefore no longer having the right to vote in local elections. She challenged her removal from the electoral roll on the grounds that she could no longer vote in the UK (as she had been abroad more than 15 years), and a French court asked the CJEU questions about the interpretation of EU law and the validity of the EU Council decision to conclude the withdrawal agreement.  In the UK citizen’s view, the loss of EU citizenship status ‘cannot be an automatic consequence of the United Kingdom’s withdrawal from the European Union’, because ‘that loss infringes the principles of legal certainty and proportionality and also constitutes discrimination between Union citizens and an infringement of her freedom of movement’.

However, the Court began by observing that ‘citizenship of the Union requires possession of the nationality of a Member State’, by reference to the Treaty provisions which say just that. In the Court’s view, ‘the authors of the Treaties thus established an inseparable and exclusive link between possession of the nationality of a Member State and not only the acquisition, but also the retention, of the status of citizen of the Union’ (emphasis added). The Court placed its prior case law holding that EU citizenship ‘is destined to be the fundamental status of nationals of the Member States’ in that context. It also noted that in the various Treaty provisions on EU citizens’ rights, ‘none of those provisions enshrines that right in favour of nationals of a third State’.

It then agreed with the Commission’s argument that there was no exception from those who moved within the EU: the exercise of free movement rights is ‘consequently, not such as to enable him or her to retain the status of citizen of the Union and all the rights attached thereto by the FEU Treaty if, following the withdrawal of his or her State of origin from the European Union, he or she no longer holds the nationality of a Member State’.

Secondly, the Court reiterated prior case law that the UK chose to leave unilaterally, ‘in accordance with its own constitutional requirements’, and that the leaving Member State is not ‘required to take its decision in concert with the other Member States or with the EU institutions’: ‘[t]he decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice’. Having left the EU in accordance with Article 50, the UK ‘is no longer, as from’ the date of entry into force of the withdrawal agreement, ‘a Member State’. It followed that ‘as from 1 February 2020, United Kingdom nationals no longer hold the nationality of a Member State, but that of a third State’. And ‘possession of the nationality of a Member State is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status. The loss of nationality of a Member State therefore entails, for the person concerned, the automatic loss of his or her status as a citizen of the Union’ (emphasis added). Being ‘nationals of a third State as from 1 February 2020’, UK citizens ‘lost the status of a citizen of the Union as from that date’, so ‘no longer enjoy’ voting rights in local elections. ‘It is irrelevant, in that regard, that United Kingdom nationals have previously exercised their right to reside in a Member State’.

Was the loss of EU citizenship disproportionate? In the Court’s view, this was ‘an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union’; and the 15-year rule ‘is a choice of electoral law made by that former Member State, now a third State’. There was no need to carry out an ‘individual examination’ of the loss of citizenship: here the Court distinguished Brexit from its prior case law in which it ruled that loss of EU citizenship resulting from a Member State depriving a person of its nationality in individual cases needed to be justified – as distinct from (again) ‘the automatic result of a sovereign decision made by a former Member State, under Article 50(1) TEU, to withdraw from the European Union and thus to become a third State with respect to the European Union’. So ‘case-law arising from those various judgments cannot therefore be applied to a situation such as that in the main proceedings’.

The Court then dismissed a more technical argument that the withdrawal agreement must be interpreted to mean that voting rights in local elections for British citizens were retained. (In fact, the provisions on the transition period expressly excluded the application of this right). The Court observed that the argument being made ‘would create an asymmetry between the rights conferred by that agreement on United Kingdom nationals and Union citizens’, which it ruled was ‘contrary to the purpose of that agreement’, as the preamble stated the objective of ensuring ‘mutual protection for citizens of the Union and for United Kingdom nationals who exercised their respective rights of free movement before the end of the transition period’.

Similarly, the Court noted that after the end of the transition period, the citizens’ rights Part of the withdrawal agreement (discussed here) ‘lays down…rules designed to protect, on a reciprocal and equal basis, the situation of citizens of the Union and that of United Kingdom nationals…who exercised their rights to freedom of movement before the end of the transition period.’ It stated that ‘[t]he purpose of those rules, which apply…as from the end of the transition period, is…to ensure reciprocal protection for Union citizens and United Kingdom nationals….those rules concern the rights connected with residence, the rights of employed and self-employed persons, professional qualifications and the coordination of social security systems.’ But the citizens’ rights part did not retain voting rights after the end of the transition period either. The prohibition on discrimination on grounds of nationality in the withdrawal agreement only applied to citizens’ rights listed in the agreement – which did not include voting rights. Yet again, the Court noted that the deprivation of this right followed from ‘the United Kingdom’s sovereign decision to withdraw from the European Union’. Various rights in the EU Treaties equally did not help, because (again) UK citizens ‘are no longer nationals of a Member State’.

The Court did, however, note that Member States retain a right ‘to grant, under conditions which they lay down in their national law, a right to vote and to stand as a candidate to nationals of a third State residing in their territory’. (A number of Member States and the UK have indeed to some extent retained voting rights in local elections).

Next, the Court turned to questions about the validity of the Council’s decision to conclude the withdrawal agreement. It confirmed prior case law that it had the jurisdiction to examine whether treaties which the EU has concluded are ‘compatible with the Treaties and with the rules of international law which, in accordance with the Treaties, are binding on the Union’, although in that context it could only rule on whether the EU decision concludingthe treaty was valid, not whether the treaty itself was valid. However, the Court ruled that arguments about voting in European Parliament elections, and EU citizens voting in the UK, were irrelevant – focussing on the issue litigated in the national court (UK citizens voting in the EU).

The Court dismissed all the arguments that the decision to conclude the withdrawal agreement was invalid. Again, various Articles of the EU Treaties were not relevant, because as Article 50 says, the Treaties have ‘ceased to apply to the United Kingdom from the date of entry into force of that agreement’, therefore UK nationals ‘no longer hold, as from that date, the nationality of a Member State but that of a third State. It follows that, as from that date, they are no longer citizens of the Union.’

As for the principle of proportionality, the Court took the view that:

there is nothing in the documents before the Court to suggest that the European Union, as a contracting party to the Withdrawal Agreement, exceeded the limits of its discretion in the conduct of external relations, by not requiring that, in that agreement in general or in Article 127 thereof in particular, a right to vote and to stand as a candidate in municipal elections in the Member State of residence be provided for United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period.

It reiterated prior case law that ‘the EU institutions enjoy broad discretion in policy decisions in the conduct of external relations’ and noted that:

In the exercise of their prerogatives in that area, those institutions may enter into international agreements based, inter alia, on the principle of reciprocity and mutual advantages. Thus, they are not required to grant, unilaterally, third-country nationals rights such as the right to vote and to stand as a candidate in municipal elections in the Member State of residence, which, moreover, is reserved solely to Union citizens….

Therefore the EU Council ‘cannot be criticised for’ concluding the withdrawal agreement without ensuring a continued right to vote for UK citizens in local EU elections.  And again, the loss of a voting right in the UK under the 15-year rule was a decision by the UK, not attributable to the EU.

 

Comments

The judgment is very similar to the Advocate-General’s opinion, although it does not include the point in the opinion that Member States chose not to confer on the EU the power to determine who can become an EU citizen. I don’t think this means it’s likely that the Court would rule, if asked somehow, that the EU does have such power; its judgment implicitly suggests there’s no such power (as the judgment confirms that EU citizenship is exclusively for nationals of Member States). In any event, there’s no sign that the EU institutions and Member States have any interest in unilaterally creating some form of EU consolation citizenship for Brits. The excited suggestion of one MEP to this end is not a source of EU law.

Nor does the judgment repeat the opinion’s observation that the applicant could simply obtain French citizenship, or the explicit conclusion that the applicant had no legitimate expectation to the retention of EU citizenship (although one might conclude that the Court implicitly rejects this when it attributes the responsibility for the consequences of withdrawal to the UK).

The centre-piece of the Court’s judgment is the simple linguistic interpretation of the Treaties: EU citizenship is conferred upon nationals of Member States; the UK is no longer a Member State; therefore UK nationals are no longer citizens of the Union. The Court does not explicitly address the argument that the Treaties only provide rules on the acquisitionof EU citizenship, but not its loss; but it implicitly rejects them by ruling that the loss of EU citizenship follows from the withdrawal from the EU. In my view, this line of argument is unfounded because it imports words into the Treaties that don’t exist: there’s no wording in the definition of EU citizenship in the Treaties to suggest that this is solely a rule on how that citizenship is acquired. And it’s reasonable to deduce that there’s no need for an explicit provision on the loss of EU citizenship, because Article 50 covers that ground by necessary implication. Also, a key means of how EU citizenship is acquired in practice is by accession to the EU – which the withdrawal process mirrors. So the more logical comparison is between the collective, not the individual, acquisition and loss of EU citizenship.  

Also, the Court is keen to point out that the consequences of the loss of EU citizenship follow from the UK’s sovereign decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed here and here). It again points out (and some Remainers seem unwilling to accept this) that the process of leaving the EU is up to the national law of the Member State choosing to leave, with no approval from the EU required (the notion that the EU ‘shouldn’t have let the UK leave’, or should somehow consider various facts – still less wild allegations – about the process of leaving, is obviously unfounded). In this context, it is worth remembering that some on the Leave side were prone to misleading or false comments about the impact for Brits of leaving the EU: for instance, this infamous tweet by the current Prime Minister (‘Brexit will make no difference’).

The Court does knock on the head the attempt to rely on the previous case law on the loss of EU citizenship (Rottmann, Tjebbes and Wiener Landesregierung – see discussion here), because they all concern the loss of EU citizenship via means of loss of nationality of a Member State. In fact, those judgments reinforce, not contradict, the logic of today’s ruling – that there is an inextricable link between EU citizenship and nationality of a Member State.

Today’s judgment is the end of the assumption – strongly held by many – that EU citizenship is a status conferred upon individuals, not a status linked to a state’s membership of the European Union. There’s certainly an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the judgment confirms) points inescapably to the latter. Member States simply did not choose to create a status of EU citizenship independently from that of nationality of a Member State.

Finally, though, there are interesting nods to the post-Brexit future in the Court’s judgment. Although it does not mention the possible relevance of EU law on long-term resident non-EU citizens (on which, see hereas regards its application to Brits, and hereand hereas regards proposals for reform), it goes out of its way to mention the citizens’ rights provisions of the withdrawal agreement, which now govern the position of those EU citizens who moved to the UK, and UK citizens who moved to the EU, before the end of the transition period. In this context (and other contexts), it mentions the importance of reciprocity in EU external relations – implicitly echoing the concerns of those who thought that arguments for Brits to retain EU citizenship, like some demands made by Leave supporters, sought to ‘have their cake and eat it too’. The Court also notes that the EU institutions have great political discretion in external relations. Time will tell whether, if UK/EU relations deteriorate still further, this might come to be seen as ‘the gun in the first act’.

Photo: Garry Knight, via Wikimedia commons

 

Continue reading It’s the end – but the moment has been prepared for: the CJEU confirms that UK citizens have lost EU citizenship