Steve Peers
Thousands of migrants residing in subpar conditions near Calais are creating a difficult situation, as many aim to reach the UK. Their efforts to traverse the Eurotunnel are causing significant travel delays at the border. This raises the question: is the UK or France responsible for these individuals?
Initially, it’s important to acknowledge the conflict between two forms of movement within the EU. The EU actively promotes the free movement of goods, people, and transport services. Conversely, the EU seeks to limit the ‘secondary’ movement of potential asylum-seekers. EU internal market law facilitates the former, while EU asylum law aims to curb the latter.
The migrants’ goal is not to halt EU free movement entirely but rather to exploit it by temporarily delaying vehicles, allowing them to stow away and continue their journey. Governmental efforts to prevent this are causing near-gridlock.
So, which government bears responsibility? Let’s analyze the situation from both the migrants’ and the free movement perspective. While ‘migrant’ may be perceived as insensitive, it will be used here to represent a group, similar to ’teachers’ or ’nurses’. Using ‘asylum-seekers’ or ‘refugees’ implies most have applied for asylum or qualify as refugees, which is unclear based on available data. ‘Migrant’ doesn’t dehumanize; it merely describes their circumstances.
Immigration and asylum law
EU asylum law governs the migrants who have applied for asylum in France, specifically the Dublin Regulation, which dictates which Member State manages their application. This might not be France, but the first Member State they entered, if France can prove it. Otherwise, France assumes responsibility. The UK is only responsible if they have close family members in the UK who are refugees or asylum-seekers.
Meanwhile, the EU’s Directive on reception conditions for asylum-seekers applies within French territory. The EU Court of Justice, in a case involving France, ruled that this Directive applies to the current location of asylum-seekers, even if the Dublin rules stipulate transfer to another Member State. It only applies to the other Member State upon actual transfer. This ruling clearly applies to asylum-seekers aiming to apply in another Member State, as the Dublin Regulation aims to prevent this choice. While the Regulation struggles to stop this in practice, the Directive ensures minimum living standards for asylum-seekers in their current location.
Practically, this means France must guarantee basic standards of welfare and accommodation for the asylum seekers. Press reports indicate these standards are not being met for those near Calais.
Furthermore, the EU’s latest Directive on asylum procedures, effective last week, sets deadlines for processing asylum claims. While this aspect doesn’t apply until 2018, the principle of effectiveness of EU law (often applied in immigration law by the CJEU) suggests claims should be processed efficiently without delay. Regarding asylum law substance, some reports suggest France grants asylum to Eritreans less often than the UK and much of the EU. This could be due to misapplication of the EU’s Qualification Directive. If unaddressed by French courts or NGOs, the Commission should identify the legal misinterpretation and initiate infringement proceedings against France.
However, not all migrants have sought asylum. Assuming they are not legal migrants, they are classified as irregular migrants, falling under the EU’s Returns Directive. This directive mandates Member States to issue return orders to irregular migrants and attempt their deportation to their origin or transit country swiftly. The EU Court recently ruled against Member States issuing fines without attempting removal. This implies Member States cannot disregard the presence of a large number of irregular migrants residing openly on their territory, as in Calais.
The Returns Directive doesn’t demand absolute removal of irregular migrants. Member States can choose to regularize their status. Should they apply for asylum, EU asylum law takes precedence until the process concludes with either protection granted or final appeal rejection, after which the Returns Directive becomes applicable again. Removal may also be practically impossible due to insufficient proof of origin, leaving them in limbo unless the State regularizes their status. Irregular migrants are entitled to emergency healthcare and essential illness treatment during their stay. Based on available information, French authorities don’t appear to be actively returning irregular migrants in Calais to their countries of origin or transit as per the Directive.
Free movement law
A CJEU ruling in a case involving France states that Member States are responsible for preventing private individuals from disrupting the free movement of goods. While states have leeway in addressing this, it is not limitless. The case involved years of lorry vandalism by farmer groups targeting goods from other Member States, with many perpetrators known to the police. France was held responsible for the ineffective response. Compensating victims wasn’t enough.
Conversely, in Schmidberger, Austria wasn’t held liable for trade disruption caused by protesters briefly blocking a transit route. The CJEU ruled that the protesters’ right to demonstrate outweighed the free movement of goods due to the short disruption.
What about industrial action, another factor in the current UK-France border restrictions? The CJEU has criticized trade union action impacting free movement. In the controversial Viking Line and Laval cases, while the disputes indirectly involved pay and conditions, they primarily aimed to halt free movement due to perceived ‘social dumping’. The CJEU ruled that EU free movement rules easily supersede trade unions’ right to strike. These cases involved freedom of establishment and services; the French strikes impact the free movement of goods. An EU Regulation following the earlier French case affirms the obligation to address private disruptions to goods movement without prejudice to the right to strike.
Applying these cases to the UK/France border, it’s unclear if strike-induced disruptions are unjustified restrictions on free movement. The strikes seem solely about pay and conditions, unlike Laval and Viking Line, where the primary objective was halting free movement.
Regarding disruptions caused by migrants seeking UK entry, while EU law acknowledges the right to asylum, it can be applied for in any Member State, negating the need to travel to the UK. Migrant numbers would likely decrease if France fulfilled its obligations: processing asylum applications, correctly deciding on Eritrean claims, and removing irregular migrants who haven’t sought asylum. Additionally, France must provide basic welfare and housing to asylum-seekers, regardless of its potential “pull” effect.
Does the UK bear any responsibility? The UK conducts border controls on French soil under a treaty on ‘juxtaposed controls’ related to the Channel Tunnel. However, the UK’s treaty obligations don’t extend to admitting asylum-seekers or irregular migrants using the tunnel. UK border checks in France don’t convert French territory into British territory, just as French border checks in the UK don’t make parts of Kent French or transfer St. Pancras to the Paris metro.
Therefore, France is responsible for the impact on free movement due to its breaches of EU immigration and asylum law. This isn’t a selfish or narrow view; it simply reaffirms that states are generally responsible for events within their borders, aligning with public international law and state sovereignty. The EU rules reflect this principle.
However, assigning responsibility doesn’t inherently solve the problem. France could withdraw from the juxtaposed controls treaty, negatively impacting the UK. Thus, it’s reasonable for the UK to contribute to a solution, even without obligation. The UK government already funds a security fence, demonstrating this principle. Offering financial support for immigration issues, such as removal or basic support costs linked to relocation within France, would be equally sensible.
Barnard & Peers: chapter 26
Photo credit: BBC