- The Migration News Sheet is your reliable source of news, policy and legal updates on migrants and refugees. Below is a selection of the headlines in the May issue.
EU: Call for revision of Schengen Convention – a convenient way out of a problem created by one Member State which has failed to abide strictly by the rules
NETHERLANDS: Dutch Government’s plan to get tough on EU nationals without jobs
BELGIUM: Belgium spent €6 million on forced repatriations last year
ITALY: Two members of Italy’s Lega Nord propose use of weapons to fight off ‘invasion’ of irregular migrants
UNHCR: UNHCR points out that only 0.8% of people fleeing Libya have gone to Italy and Malta
NETHERLANDS: Westernised Afghan girls may not be repatriated – opposition parties are dissatisfied and ask why not also homosexuals and Christians
FRANCE: ‘Race quota’ claim against French Football Federation may be based on remarks taken out of context
UK: Controversy over first far-right mayor
AUSTRIA: Turkish to become a final exam subject in Austria
GERMANY: Federal Commissioner for Integration calls on new East European immigrants to integrate
On 13 April 2011, acting on an appeal lodged by a Turkish national, the High Administrative Court (OVG) of Berlin-Brandenburg submitted an application for a preliminary ruling to the European Court of Justice (ECJ) to determine, inter alia, whether Turkish tourists and family visitors are recipients of service and whether they are covered by the standstill clause of Article 41 (1) of the 1970 Additional Protocol to the 1963 EEC-Turkey Association Agreement.
Briefly, the case concerns a Turkish woman who wanted to enter Germany to visit her relatives and has argued that she is entitled to do so without having to apply for a visitor’s visa by virtue of the afore-mentioned standstill clause.
In Soysal (C-226/06), the ECJ ruled on 19 February 2009 that the aforementioned standstill clause prohibits a number of EU Member States, including Germany, from introducing after the date of 1st January 1973 (when the additional Protocol came into force) “a requirement that Turkish nationals (…) must have a visa to enter the territory of a Member State in order to provide services there on behalf of an undertaking established in Turkey, since, on that date, such a visa was not required”.Since the Soysal ruling has been handed down, there has been much debate on whether it is limited to providers of services and whether recipients of services can also be included.
Since the Soysal ruling has been handed down, there has been much debate on whether it is limited to providers of services and whether recipients of services can also be included.
Where EU nationals are concerned, the ECJ has consistently held, for example in Cowan (C-186/87) and Bickel and Franz (C-274/96), that the freedom to provide services “includes the freedom for the recipients of services to go to another Member State in order to receive a service there”.
Whilst the present issue concerns Turkish and not EU nationals, the ECJ has also consistently held that similar concepts in the EEC-Turkey Agreement and in other subsequent and related decisions have to be interpreted, as far as possible, as having the same meaning in EU law as for EU nationals.
In its application, the referring Court has asked the ECJ whether the freedom to provide services within the meaning of the said additional Protocol includes also the freedom to receive services in other EU Member States.
If this is the case, then the ECJ is asked also whether Turkish nationals can invoke such a right if they do not wish to receive a specific service, but rather to visit relatives residing in the Member State in question, namely Germany, and, during their stay will request and receive services, such as dining out in a restaurant.
There is another case in the appeals procedure in Germany, concerning a Turkish woman who boarded a Lufthansa flight for Istanbul in Los Angeles on 29/30 September 2009.
She was to make a brief stopover in Munich to catch her connecting flight to Istanbul but the Lufthansa aircraft arrived late and she found herself stranded at the airport because Lufthansa could not book her on another flight for Istanbul until the next morning.
Together with the person accompanying her, the two were also unable to spend the night in a nearby hotel because the Federal Border Authorities refused to allow them to leave the transit area of the airport even though Lufthansa had confirmed that they were booked on a connecting flight the next morning for Istanbul.
The two therefore had to spend the night sleeping rough on the uncomfortable benches of the transit lounge, with the lights on all the time.
In its decision handed down on 9 February 2011, the Administrative Court (VG) of Munich ruled that she was entitled to enter Germany, without an authorisation of residence or an entry visa, for up to three months in order to be a recipient of services, especially for purposes of tourism.
However, in its decision, the VG of Munich saw it fit to make a broad statement that a family visit, even if it entails many such service receptions, was not covered by the said standstill clause.
The ruling is not final since the Federal Government has lodged an appeal.
On 28 April 2011, in a case (C-61/11) concerning an irregular migrant, Mr EL DRIDI, imprisoned in Italy for refusing to comply with an expulsion order, the European Court of Justice (ECJ) has ruled that a law which provides for a prison sentence to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period, is contrary to EU Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Articles 15 and 16 thereof.
There are at least six other similar applications for a prejudicial ruling pending before the ECJ. Presumably, in the light of the ECJ’s ruling on the case of Mr EL DRIDI, they will all be withdrawn. The other six cases are C-43/11, C-50/11, C-60, C-63/11, C-94/11 and C-120/11.
Like the other six cases, Mr EL DRIDI entered Italy illegally, does not have a valid residence permit and has failed to comply with an expulsion order.
Under Italian law, namely Article 14(5b) of the Legislative Decree No 286/1998, a judge was obliged to sentence him to one year’s imprisonment.
He appealed the sentence to the Appeal Court of Trento which was in doubt as to whether a criminal penalty could be imposed during administrative procedures concerning the return of a foreign national to his country of origin due to non-compliance with the stages of those procedures.
As a matter of fact, the Appeal Court of Trento considered that a prison sentence could be contrary to the spirit and the letter of the said EU Directive 2008/115.
A prison sentence would appear to be contrary to Articles 15 and 16 of this Directive.
Article 15 concerns detention for the purpose of expulsion and Article 16 spells out the rules and conditions of detention.
Under Article 15, detention must be used as a last resort and be “for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence”.
The period of detention is to be limited to six months, a Member State may extend it for a further 12 months “in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:
(a) a lack of co-operation by the third-country national concerned, or
(b) delays in obtaining the necessary documentation from third countries.
As for Article 16, it stipulates that an irregular migrant must, “as a rule” be held in “specialised detention facilities”.
“Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.”
Before reaching its judgment, the ECJ reminded that the said EU Directive 2008/115 sets out specifically the procedure to be applied by each Member State for returning illegally staying third-country nationals and fixes the order in which the various, successive stages of that procedure should take place.
As part of the initial stage of the return procedure, priority is to be given, except where otherwise provided for, to voluntary compliance with an expulsion order.
It is only in particular circumstances, such as where there is a risk of absconding, that Member States may, first, require an irregular migrant under a deportation order to report regularly to the authorities, deposit an adequate financial guarantee, submit documents or stay at a certain place or, second, grant a period shorter than seven days for voluntary departure or even refrain from granting such a period.
If the irregular migrant still refuses to comply, the Member State concerned may then take all necessary measures including, where appropriate, coercive measures, in a proportionate manner and with due respect for, inter alia, fundamental rights.
From the wording of Article 15(1), Member States must carry out the removal using the least coercive measures possible.
It is only where, in the light of an assessment of each specific situation, the enforcement of the return decision in the form of removal risks being compromised by the conduct of the person concerned that a Member State may place this person in detention.
Detention must, however, be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.
Under Article 15(3) and (4), such deprivation of liberty is subject to review at reasonable intervals of time and is to be terminated when it appears that a reasonable prospect of removal no longer exists.Detention is the most serious constraining measure allowed under the Directive under a forced removal procedure and is strictly regulated, in order to ensure, inter alia, observance of the fundamental rights of the third-country nationals concerned.
Article 15(5) and (6) fixes the maximum duration of detention at 18 months, a limit which is imposed on all Member States.
Article 16(1) of that Directive further requires that the persons concerned are to be placed in a specialised facility and, in any event, kept separated from ordinary prisoners.
Detention is the most serious constraining measure allowed under the Directive under a forced removal procedure and is strictly regulated, in order to ensure, inter alia, observance of the fundamental rights of the third-country nationals concerned.
The ECJ pointed out that the maximum period of detention authorised under the said Directive is intended to take account both of the case-law of the European Court of Human Rights, according to which the principle of proportionality requires that the detention of a person against whom a deportation or extradition procedure is under way should not continue for an unreasonable length of time, that is, its length should not exceed that required for the purpose pursued, and of the eighth of the ‘Twenty guidelines on forced return’ adopted on 4 May 2005 by the Committee of Ministers of the Council of Europe, referred to in recital 3 in the preamble to the Directive. According to that guideline, any detention pending removal is to be for as short a period as possible.
The ECJ then noted that the said Directive has not yet been transposed into Italian law. However, it is settled case-law that where an EU Directive is not yet transposed, the relevant provisions contained therein, if they are unconditional and sufficiently precise, may be relied on by individuals against the State. Articles 15 and 16 of the said Directive 2008/115 meet these conditions.
The ECJ acknowledged that where measures taken to remove an irregular migrant fail to produce results, a Member State remains free to adopt measures, including criminal law measures, aimed, inter alia, at dissuading him/her from remaining illegally on its territory.
Moreover, criminal legislation and the rules of criminal procedure are, in principle, matters for which the Member States are responsible. However, this branch of the law may nevertheless be affected by European Union law.A prison sentence, due inter alia to its conditions and methods of application, risks jeopardising the attainment of the objective pursued by the Directive in question, namely, the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals. It could, moreover, delay the enforcement of the removal of the migrant.
In particular, a Member State may not apply rules, even criminal law rules, which are liable to jeopardise the achievement of the objectives pursued by an EU Directive and, therefore, deprive it of its effectiveness.
The ECJ pointed to recital 13 in the preamble of Directive 2008/115 which stipulates that the use of coercive measures is subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued.
Consequently, concluded the ECJ, a Member State may not, in order to remedy the failure of coercive measures adopted to ensure compliance with an expulsion order, provide for a prison sentence, such as the aforementioned Italian law, on the sole ground that the irregular migrant in question continues to stay unlawfully on its territory after the order has expired. It should, instead, pursue its efforts to enforce the return decision, which continues to produce its effects.
A prison sentence, due inter alia to its conditions and methods of application, risks jeopardising the attainment of the objective pursued by the Directive in question, namely, the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals. It could, moreover, delay the enforcement of the removal of the migrant.
On 11 April 2011, the Council adopted the proposal to extend the scope of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third country nationals who are long-term residents (see MNS, December 2010).
Denmark, Ireland and the UK have decided not to opt in and are therefore not bound by the provisions of this Directive.
This implies that like any other third-country nationals, refugees and beneficiaries of subsidiary protection will be able to acquire long-term resident status after living in an EU country for more than five years.
All Member States, with the exception of the afore-mentioned three, will have up to two years to amend their laws to give effect to the proposal.
In two years’ time, Convention refugees and beneficiaries of subsidiary protection will have:
- the right of free movement within the EU, including the right to reside and work in another EU Member State; and,
- under certain conditions, they will enjoy equality of treatment with EU citizens in the EU Member State to which they have moved in a wide range of economic and social matters, including education, access to the labour market and social security benefits.
Moreover, the adopted Directive contains arrangements for the calculation of the five years of residence, which is the main criterion to be satisfied for long-term residence status.By the time Member States actually apply this Directive, Convention refugees will have waited almost half a century to benefit from the right of free movement, a proposal first brought up in March 1964.
The basic rule is that at least half of the period between the date on which the application for international protection was lodged and the date on which it is granted should be taken into account.
In exceptional cases where the asylum procedure takes more than 18 months, the whole period should be taken into account.
The Directive also foresees, in certain specific circumstances, possibilities to withdraw the status and expel the third-country national, in accordance with international obligations.
By the time Member States actually apply this Directive, Convention refugees will have waited almost half a century to benefit from the right of free movement, a proposal first brought up in March 1964.
According to a study carried out by “Pôle-Emploi”, sending out anonymous CV has not improved the chances of employment by groups who may be victims of discrimination, in particular people of foreign origin and those who live in underprivileged areas.
With the trial introduction of anonymous CVs in eight departments in France, such categories of people are now even less likely to be invited to an interview if their CV contains no name or address.
Whereas candidates belonging to such categories of people used to stand one chance in 10 in getting an interview, this has plummeted to one in 22 with anonymous CVs.
On the other hand, candidates of more “privileged” backgrounds who used to have one chance in eight in being invited to an interview now have one chance in six with anonymous CVs.
According to the researchers, recruiters sometimes make allowances for a poorly presented application in France, such as having grammatical or spelling errors, if they see a foreign name or notice that the candidate is from a deprived area and is, understandably, lacking in qualifications and experience.
When faced with anonymous CVs, such gestures of positive discrimination are not possible.
According to a study carried out by researchers of the University of Gothenburg whose results were made public at the end of last March, adopting more restrictive policies on immigration in order to reduce support for the populist Sweden Democrats would only have the opposite effect. They will become even more popular.
Examining the events and declarations made in relation to last year’s local council election, the researchers found that when other political parties spoke out in favour of tougher immigration measures, the Sweden Democrats were the ones who benefitted, according to opinion polls.
In order to counteract the influence of the Sweden Democrats, the Centre Party wants to bring down unemployment among foreigners.
Michael ARTHURSSON of the Center Party has called on the Government to revise its integration policy with the aim of bringing down the unemployment level of foreigners.
He pointed out that since his party came to power, in coalition with other right and centre-right parties, the unemployment rate among foreign-born people has been rising.
His party also wants to increase labour migration by making it easier for employers to recruit manpower from abroad.
Mr ARTHURSON believes that it would be more difficult for the Sweden Democrats to defend their ideas on immigration if there were more foreigners arriving in Sweden to work.