Steve Peers

Introduction

The free movement of EU citizens and immigration and asylum from non-EU countries are central issues within EU law that have sparked considerable debate in recent years. This blog post examines the numerous legal developments in these areas over the past year. It first analyzes the disagreements surrounding the free movement rights of EU citizens and then explores the conflicting priorities in EU immigration and asylum law. These include balancing immigration control with human rights and navigating the division of authority between national and EU powers. This post is the second in a series reviewing various aspects of EU law over the past year. The first post in this series, which focuses on criminal law, is available here.

Free Movement Law

In 2014, the Court of Justice of the European Union’s (CJEU) case law on EU citizens’ free movement primarily revolved around the restrictions on economic migration, the principle of equal treatment, and EU citizens’ right to family reunification. Regarding economic migration, the most notable judgment of 2014 was the Dano ruling (analyzed here). In this case, the CJEU adopted a stricter stance than usual, determining that an EU citizen who had not been employed or actively sought employment was not entitled to social assistance benefits in their new Member State of residence.

Concerning the fundamental requirements for eligibility for EU free movement rights, the CJEU did not issue any rulings in 2014 regarding the definition of EU citizenship. However, an ongoing case before the UK Supreme Court (examined here) raises significant concerns about the scope of EU regulations related to losing national (and consequently, EU) citizenship. The process of acquiring EU citizenship also generated controversy concerning Malta’s practice of selling national (and thereby EU) citizenship (analyzed here).

It is worth noting that EU free movement rights typically apply only to individuals who have relocated between Member States. In two related judgments issued this spring (discussed here), the CJEU provided clarification on important exceptions to this rule. These exceptions pertain to EU citizens who have resided in another country to be with family members and subsequently returned, as well as cross-border workers or service providers. In the coming year, the CJEU is expected to offer further clarification on another crucial exception: the Ruiz Zambrano scenario. This situation arises when the non-EU parent of an EU citizen child faces expulsion to a third country, compelling the EU citizen child to follow, resulting in a practical loss of their EU citizenship. Both the CS and Rendon Marin cases present the Court with the question of whether the existing case law applies when the non-EU parent has been expelled due to a criminal conviction.

Concerning EU citizens who relocate between Member States, the CJEU issued a noteworthy judgment in the case of Saint-Prix (discussed here). This ruling expanded the understanding of “former workers” beyond the categories outlined in the EU’s citizens Directive. It determined that under specific circumstances, pregnant women who left their jobs before their child’s birth could also be classified as “former workers.”

This judgment pertained to the ongoing access to equal treatment regarding social benefits that former workers retain. Notably, a new Directive on equal treatment for workers (analyzed here) was adopted in 2014. This Directive aims to guarantee the practical and effective enforcement of such equal treatment rights. In the coming year, the Alimanovic case will call upon the CJEU to clarify whether the constraints on EU citizens’ access to benefits, as established in Dano, also extend to job seekers who previously had limited access to labor market-related benefits. The Court will also soon issue a ruling on students’ access to benefits in the Martens case, for which an Advocate General’s opinion has already been delivered.

The right of EU citizens to family reunification was a recurring theme throughout the year, with the CJEU consistently adopting a liberal approach. The CJEU advocated for a broad interpretation of “dependent” family members in Reyes (discussed here). It also reaffirmed in Ogierakhi (discussed here) that separated spouses remain eligible for permanent resident status. Additionally, in McCarthy (discussed here), the CJEU ruled against requiring non-EU family members of EU citizens to obtain a “family permit” to visit the UK. The Court stated they should be exempt from visa requirements if they possess a residence card in their country of residence. This judgment clarified that Member States could only allege abuse of free movement rights by EU citizens in specific individual cases. Regarding this matter, the Commission published a Handbook addressing ‘marriages of convenience’ (discussed here). In the coming year, the Court will be tasked with clarifying the applicability of EU law to divorces (Singh) and, for the first time, to same-sex relationships (Cocaj).

Finally, concerning derogations, the Court adopted a stricter stance on cases involving criminal convictions. In G and Onuekwere, it ruled that time served in prison in the host Member State did not contribute to fulfilling the requirement for obtaining permanent residence status or the enhanced protection against expulsion associated with ten years of residency.

It is important to acknowledge that the advantages of EU free movement law are not universally accepted. The debate regarding the merits of these regulations intensified in the UK throughout the year. Prime Minister David Cameron asserted that a substantial renegotiation of these rules was essential when renegotiating the UK’s EU membership. As previously highlighted (see the analysis here), many of his demands would prove challenging to fulfill as they would necessitate amending the Treaty.

Immigration and Asylum law

Significant developments occurred across all four key areas of EU immigration and asylum law in 2014: visas and border controls, irregular migration, legal migration, and asylum.

Visa and borders

Regarding border controls, the EU introduced new legislation on maritime surveillance in the spring (analyzed here). This followed a CJEU judgment that invalidated the previous Council implementing measure on the same matter. These regulations establish rules for search and rescue operations, maritime surveillance, and the accountability of Frontex, the EU’s border agency. However, they do not provide mechanisms to ensure the accountability of Member States in cases of ‘push-backs’ (unlawful returns to the country of origin from international waters) where Frontex is not involved. Additionally, these regulations do not address the issue of asylum seekers being unlawfully denied entry at external land borders, as seen in recent Spanish legislation applied to its North African enclaves.

To be fair, there has undoubtedly been a significant increase in national operations aimed at saving the lives of migrants in recent years, particularly Italy’s Mare Nostrum operation between 2013 and 2014. However, this operation was scaled down starting in the fall of 2014 and replaced with the significantly smaller EU-led Operation Triton. Consequently, there is a possibility that more migrants may lose their lives in the Mediterranean Sea.

Instead, the EU is choosing to prioritize stricter controls at its external borders. However, negotiations concerning the EU’s smart borders proposals continued throughout 2014, and an agreement on the relevant rules is not expected before 2016. As for CJEU case law, the significant Air Baltic judgment confirmed that EU regulations concerning entry at external borders are comprehensive, leaving no residual discretion to Member States. This follows the 2013 judgment in Koushkaki, which addressed the visa code. In another judgment related to this area, concerning the EU’s passport regulations (the so-called Doktor U case), the Court mirrored the EU legislature’s typical approach. It prioritized border controls over individual rights, in this instance, the right to have one’s chosen name appear on their passport.

In the area of visas, new legislation was passed in 2014 that waived visa requirements for Moldova and later for a list of other countries (including Peru, Ecuador, the United Arab Emirates, and several tropical island nations). These waivers were contingent, for most of these countries, upon the successful negotiation of visa waiver agreements. Agreements facilitating visa processes with Armenia, Azerbaijan, and Cape Verde came into effect, and the EU and Turkey initiated discussions regarding a visa waiver program. Furthermore, the Commission proposed establishing a new ’touring visa’ and overhauling the EU’s visa code. This aims to promote tourism and other legitimate travel and includes new regulations for Schengen visas for non-EU family members of EU citizens (discussed here). In essence, 2014 witnessed a continuation of the long-term trend of progressively liberalizing the EU’s visa policies.

Irregular migration

In this area, the primary focus was on the EU’s Returns Directive, which outlines detailed procedures for various aspects of the expulsion process. Interestingly, while CJEU case law before 2014 primarily focused on grounds for immigration detention (with the exception of the 2013 Filev and Osmani judgment on entry bans), this year saw a wider range of case law. The CJEU, in the Mukarubega and Boujlida judgments (analyzed here), elaborated on the right to a hearing during the administrative stage, prior to issuing an expulsion order to an irregular migrant. It affirmed the existence of such a right, even without explicit mention in the Directive, although it then significantly limited the practical implications of this right.

Conversely, the Directive outlines fundamental rules for the judicial review of detention, which the CJEU interpreted for the first time in the Mahdi judgment (discussed here). Notably, the CJEU reinforced judicial oversight of detention period extensions. However, it did not provide clear answers regarding the review of grounds for detention. This includes the question of whether a ‘risk of absconding’ exists solely because an individual lacks identification documents.

The CJEU also issued its first ruling on the judicial review of removal orders in the Abdida case (discussed here). The Court maintained that legal challenges to removal orders must have suspensive effects if the irregular migrant claims a significant health risk upon returning to their origin country. Furthermore, this judgment addressed the living conditions of irregular migrants awaiting removal for the first time. In this case, Mr. Abdida was deemed eligible for fundamental social assistance, despite the absence of explicit rules on this matter within the Directive. The judgment also confirmed that Member States must consider a list of factors when implementing the Directive, including ’non-refoulement’ (among other grounds), which could serve as a basis for non-removal. It also took a broad view of interpreting ’non-refoulement.’ Essentially, the CJEU ruled that in certain situations, the Directive could support a claim for a form of protection. However, in the parallel case of M’Bodj (discussed below), it determined that such cases did not fall under the purview of EU asylum rules. In the Mahdi judgment, it concluded that, in typical cases, irregular migrants who cannot be removed do not acquire any particular rights under the Returns Directive, effectively leaving them in a state of uncertainty.

Moreover, the CJEU established significant new legal ground in the cases of Bero and others (discussed here). The Court ruled on detention conditions for the first time, considerably restricting circumstances where Member States could detain irregular migrants in prisons rather than dedicated detention facilities.

Currently, further critical questions await consideration by the CJEU. In the coming year, the Court is expected to rule on the extent of Member States’ authority to establish more favorable conditions for irregular migrants by issuing fines in lieu of expulsion (Zaizoune). The Court will also clarify the extent of Member States’ obligation to grant irregular migrants a period for voluntary departure (Zh and O). Additionally, it will address whether the restrictions on criminalizing irregular migrants, established by previous case law, are also applicable to individuals who overstayed their authorization (Celaj; the Court missed an opportunity to address this point in its 2014 ruling in Da Silva). It will further clarify the grounds for detention, specifically when an irregular migrant’s ’lack of cooperation’ can justify prolonged detention (Mehrabipari).

The Commission and the European Migration Network also examined the Returns Directive in 2014. The Commission’s report (discussed here) provided insights into how Member States apply the Directive in practice, although it lacked detailed information. The Network’s report (analyzed here) offered more specific details regarding detention practices. Overall, the reports suggest that Member States have raised their standards in certain areas but lowered them in others. However, it was disappointing that the Commission failed to initiate any infringement proceedings against Member States or to issue guidelines for correctly applying the Directive.

Developments were also observed regarding other aspects of irregular migration in 2014. The Commission released a report on Member States’ implementation of the Directive prohibiting the employment of irregular migrants (discussed here). It found that Member States enthusiastically apply the Directive’s coercive measures but fail to fully implement its provisions protecting migrants’ rights. For its part, the CJEU confirmed that EU employment law covers third-country nationals, including irregular migrants (see the discussion here). Moreover, the Commission delivered its second report on applying EU regulations concerning the immigration status of trafficking victims. The report (discussed here) indicates that Member States remain reluctant to issue residence permits to these victims, hindering effective prosecution in such cases.

Finally, EU readmission agreements with Turkey, Armenia, Azerbaijan, and Cape Verde became effective in 2014. These agreements complete the network of EU readmission agreements in the east and southeast (excluding Belarus) and, for the first time, extend it to an African state. Additionally, the CJEU reinforced the EU’s power to incorporate readmission clauses into development treaties (discussed here), suggesting the potential for more readmission rules in the future.

Legal Migration

In 2014, after four years of deliberation, the EU agreed on new legislation concerning two aspects of labor migration. These include legislation on seasonal workers and intra-corporate transferees (the latter directive is discussed here). Some progress was also made on the 2013 proposal to modify the rules governing students and researchers: the European Parliament adopted its position in the spring, while the Council reached an agreement on its position in December. Negotiations between these two branches of the EU legislature will begin in 2015. However, due to their vastly different viewpoints, these discussions are expected to be challenging. (These positions will be examined in detail in a forthcoming blog post).

The Commission also presented its first report on the EU’s flagship legislation on labor migration, the ‘Blue Card’ Directive. This report (discussed here) revealed that Member States extensively utilize the Directive’s numerous options, thereby weakening its original purpose of attracting highly skilled migrants to settle within the EU. The new EU Commission plans to propose amendments to this legislation (discussed here) to ensure that it effectively achieves its objectives.

The CJEU played a limited role in developing EU law on legal migration in 2014. Its involvement primarily concerned rulings on issues related to family reunification, long-term residents, and students. Regarding family reunification, the CJEU delivered a disappointing judgment in Noorzai (discussed here). This case involved calculating waiting periods for spouses married before the age of 21. The ruling demonstrated little consideration for the Court’s previous case law emphasizing the importance of safeguarding family life and narrowly interpreting exceptions to the EU’s family reunification Directive. However, in Dogan (discussed here), the Court insisted on applying a standstill clause concerning family members of Turkish workers. This effectively exempts them from the more restrictive rules implemented in recent years unless those rules can be justified based on public policy grounds. In the coming year, the Court will address a crucial question in the K and A case regarding the limits of imposing integration requirements as a prerequisite for family reunification. While the Commission issued helpful (though overdue) guidance on implementing the family reunion Directive (discussed here), it remains to be seen if it will take action to enforce the law.

Furthermore, the CJEU ruled in Tahir that being a family member of a long-term resident is insufficient to qualify for long-term resident status independently. The Court is anticipated to issue rulings in the upcoming year on various matters. These include when integration requirements can be applied to long-term residents (P and S; the Advocate General’s opinion is due in January), the scope of equal treatment for long-term residents (_[Van Hauthem](http://curia.europa.eu/juris/fiche.jsf?id=C%3B176%3B14%3BRP%3B1%3BP%3B1%3BC2014%2F0176%2FP&pro=&lgrec=en&nat=or&oqp=&dates=&lg=&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E%252C%2