Dr Iyiola Solanke
According to reports from the BBC, ‘jobless migrants from within the European Union will be denied access to housing benefit from April this year’. Housing benefit is an ‘in –work’ benefit which provides support with rent for those who are unemployed or on a low income. As it is means tested, it may not cover all rent costs. It is administered through local councils to private and social landlords. Universal credit will replace housing benefit in 2015. Before then, both Home Secretary Theresa May and Work and Pensions Secretary Iain Duncan Smith intend to introduce plans to ‘prevent exploitation of the UK welfare system’ by ‘jobless’ EU migrants.
Research suggests that EU migrants are less likely than UK nationals to claim any form of benefits so the prevention of exploitation by targeting EU migrants is questionable. Furthermore, who are the jobless EU migrants – are they a composite group? Finally, as these measures will not apply to jobless nationals, would such action be compatible with EU law? There is indeed little free movement for jobless migrants under EU law but when is an EU migrant ‘jobless’?
Focusing on the ‘jobless’ draws a broad distinction between this group and EU migrant ‘workers’: the former have few rights under EU law while the latter have many. Article 45 TFEU provides free movement to workers within the EU. A worker under EU law is a person who is employed: in Lawrie Blum and Collins the CJEU defined a worker as a person who provides services under direction of another for remuneration. The work itself must constitute a ‘genuine economic activity’: in Steymann the provision of maintenance tasks for was seen as such whereas in Bettray work conducted as part of a rehabilitation scheme was not. The number of hours worked and level of salary are irrelevant to the definition.
The Citizenship Directive (CD) adopted in 2004 guarantees migrant EU workers and other ‘qualified persons’ equal treatment with nationals in the territory of a host member state. Migrant EU workers benefit from non-discrimination on the grounds of nationality – they and their family members are to be treated in the same way as any national worker, in relation to work, education and access to benefits. Conditions for this equal treatment are set out in Chapter III of the CD. Continue reading
Dr Iyiola Solanke
What does ‘genuine enjoyment’ of citizenship rights actually mean? This idea was first introduced by the CJEU in Zambrano, where that Court held it would deprive child EU citizens of the ‘genuine enjoyment’ of the rights associated with EU citizenship if their parents or primary carers were compelled to leave the EU. This idea of compulsion has been propelled to the fore in HC and Sanneh, to the extent of perhaps eclipsing the notion of ‘genuine enjoyment.’
Zambrano arose less than 10 years after the case of Chen and has become equally seminal in the development of the substance of EU citizenship. Whereas in Chen, the Chinese (thus non-EU) parents had taken their child born in Ireland to Wales, thus making Baby Catherine a migrant EU citizen, in Zambrano the children born to Columbian (thus non-EU) parents were stationary – they had not moved from their state of birth – but were nonetheless accorded EU citizenship rights. As there was no migration to engage EU law, the new idea of ‘genuine enjoyment’ was introduced to perform this function. The CJEU decided in Zambrano that refusal to provide a residence and work permit would compel parental departure from the EU and thus undermine the ‘genuine enjoyment’ of EU citizenship rights by the child; the refusal was therefore contrary to EU law.
Before anybody could get too excited about the potential of this idea, Dereci and McCarthy clarified that compulsion related solely to practical consequences. The rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave – diminution of the enjoyment of family life does not engage Zambrano rights. Nonetheless, Zambrano gave birth to two new important statuses in EU law: the ‘Zambrano carer’ and the ‘Zambrano citizen.’ The latter refers to a non-migrant minor EU citizen; the former to the primary carer of such a citizen. A Zambrano carer – by definition a non-EU citizen, in practice mostly female and predominantly black – derives crucial rights of residence in order to effect the ‘genuine enjoyment’ of the rights of Zambrano citizens. This status of ‘Zambrano carer’ has since its introduction become extremely valuable to mothers, who would otherwise struggle to gain residence rights without relying on their partners. For some, such as HC, this liberates them from domestic violence. For others who may be abandoned, like Sanneh, it provides a lifeline preventing expulsion to unhappy lives elsewhere. Continue reading
Dr Iyiola Solanke
In July 2013, a group of activists, academics and lawyers gathered at Matrix Chambers and the University of Leeds School of Law to continue the conversation on black experiences of policing in the EU. This topic has recently received media coverage, not only here in the UK but also in Germany (the NSU trial), Sweden (the riots in Husby and elsewhere), and Greece (the ‘Golden Dawn’ effect). The trial of George Zimmerman for the murder of black teenager Trayvon Martin in the USA provided a global backdrop for the Roundtables. The ‘not guilty’ verdict delivered by an all white Southern female jury was followed by widespread outrage and a discussion of the ‘Stand Your Ground’ rules under which Zimmerman was tried. Perversely, while African-American children worried about whether they could walk the streets safely, somebody invented ‘trayvoning’ (adopting the pose of Trayvon’s lifeless corpse).
The Roundtables focused on the policing of racist violence as well as violent and racist policing. Discussions were set within the context of the new Europol Package proposed by the Commission in March 2013. The Europol Package aims to anchor the powers for policing in the EU in a binding Regulation and merge the operational activities of Europol with the training activities of CEPOL. Under the plans, CEPOL would become a department within Europol. It is questionable whether Articles 87 and 88 TFEU provide the powers for the envisaged reorganization and expansion of Europol. It is also questionable whether Europol could improve black experiences of policing across the EU. Continue reading
Dr Iyiola Solanke
Readers of EUtopia Law may recall my comments in May on the government plans to introduce a duty upon landlords to check the immigration status of their tenants. I stressed that the proposed checks were likely to breach UK obligations under EU law. Since then, the plans have been modified in order to reduce the administrative burden and limit the reach of the envisaged rules. The intention now is to target the landlord duty only on those renting out properties in certain boroughs that are popular with migrants, such as Ealing and Hounslow in West London. I would contend that this does not rid the policy of problems, but changes them: such a focus is likely to breach the EU Race Directive 2000/43, as well as the public sector equality duty (PSED) in Section 149 of the Equality Act 2010.
The EU Race Directive sets out a framework for combating discrimination on the grounds of race and ethnicity. The scope, set out in Article 3 covers both public and private sectors and includes housing. Although the Directive explicitly excludes nationality, the landlord duty as currently envisaged is likely to disproportionately affect British black and minority ethnic communities. As a consequence of the demographics of housing, it is likely to prove difficult to target areas with high numbers of migrant populations without also targeting settled communities of colour. Ealing and Hounslow are examples of this: Lambeth and Stratford in South and East London are others. Beyond the Race Directive, the government should also consider the PSED, under which all public authorities must have ‘due regard to the need to’ not only eliminate conduct prohibited by Act, but also advance equality of opportunity and, perhaps most relevant to the landlord duty, foster good relations. The modifications may therefore be unlawful under national as well as EU law. Continue reading
Dr Iyiola Solanke
May has not been a good month for policing in the EU. The service that they provide has been under the spotlight in various member states. The policing of racist violence is on trial in Germany, where the process against neo-Nazi Beate Zschäpe began this month. The alleged co-founder of the National Socialist Underground (NSU) terrorist group is accused with four other people of involvement in 10 murders of Turkish-Germans between 2000 and 2006, as well as in a bomb attack on a Turkish-German district of Cologne. The NSU had apparently believed that the German nation was under threat and had decided to save it by randomly executing Germans of Turkish descent. Each victim was shot: in the head, through the face, in the neck. The first victim was Enver Simsek, a flower seller from Nuremburg – he was found in the back of his delivery van with eight bullets in his body. He had been assassinated – shot at close range and his body fired into when he was already immobile. The last victim was Halit Yozgat, murdered whilst at work in his Internet cafe in Kassel. On trial is not only Zschäpe but the German police: they refused to acknowledge a racist motive behind the murders and treated them instead as gang killings, suspecting the families instead of supporting them. The catalogue of errors by law enforcement officials ensuing from that basic blindness has led to comparisons with the murder of black teenager Stephen Lawrence in Britain 20 years ago and similar accusations of institutional racism.
The continuing problem of racist and violent policing is highlighted by riots in Sweden. Six nights of violence in May exposed the hidden tensions between the police and minority ethnic communities: schools have been set ablaze, businesses smashed up and stones thrown at police. The battles have left the international image of peaceful Swedish integration that we all believed in tatters – as is often the case it was only the voiceless victims who knew the reality. The violence has apparently been a long time coming: police have for years harassed black and ethnic minority citizens, and even those white Swedes associated with them. As in Germany, blinkered police interpretation played a leading role: arriving home with his Finnish wife after being chased by a gang of youths, a 69-year-old Swede of Portuguese origin emerged from his house brandishing a knife to confront the marauders; police arriving on the scene assumed they were dealing with a situation of domestic violence, broke into his home and shot him dead, in front of his wife. Who needs Elizabethan drama? The 21st century is littered with its own tragi-farcical material. The police then apparently inflamed the situation by calling the rioters ‘monkeys’ and ‘negroes.’ Continue reading
Dr Iyiola Solanke
‘My government will bring forward a bill that further reforms Britain’s immigration system. The bill will ensure that this country attracts people who will contribute and deters those who will not.’
Every government in the post-WWII period has promised to reform the immigration system. Fortunately words have been chosen carefully – none promise to improve it. In times past, governments have tried to gain support for stricter immigration controls with a ‘sweetener’, usually in the form of simultaneous promises to improve integration. This trend is visible in the Queens Speech of May 8th, but the tone is quite different: previously, equality was promoted as a right; for the Coalition ‘fairness’ is a reward for those who ‘work hard’. In short, the Coalition ‘is committed to a fairer society where aspiration and responsibility are rewarded.’
Yet this fair treatment does not extend to immigrants who the Coalition plan to subject to further unfair treatment at the hands of private landlords. The intention is to impose upon landlords a requirement to check the immigration status of tenants or face heavy fines. It is not clear which of the above reform goals this is designed to address: it seems to be a general measure to disseminate throughout society a message of ‘crimmigration’ – the criminalization of immigration whereby those who cross borders are per se regarded as a security threat and subjected to constant policing and monitoring.
Many have already questioned how this duty will work, given that there is no current register of the millions of private landlords in the country. Why should they make the effort to comply, even with the threat of fines? In order to make such sanctions effective they will have to be closely enforced; surely it will undermine the Conservative goal of reducing ‘red tape’ to introduce the necessary enforcement regime? Furthermore, given that discrimination on the grounds of nationality has been prohibited under EU law since 1957, can the government introduce a measure which explicitly targets non-nationals, including those arriving from the European Union?
Dr Iyiola Solanke
April 22nd 2013 marked the 20th anniversary of the murder of Stephen Lawrence. His life and brutal death remains an important watershed for the pursuit of racial equality in Britain, especially via the use of anti-racial discrimination law. The murder by a gang of racist thugs of a young, well educated black man who planned to become an architect touched the nation and triggered a new era in legislative action. The determined campaign of a devastated family led to the MacPherson Report which gave formal recognition to the idea of institutional racism. The acknowledgment of this idea changed the way in which law tackled racial discrimination – it lead to the introduction of a ‘public sector equality duty’ (PSED) which placed an obligation upon public authorities to promote racial equality and foster good race relations. The last Labour government saw fit to extend this duty from race to all protected characteristics listed in Section 1 of the Equality Act 2010; last year, however, Conservative Home Minister Theresa May launched a consultation to consider its removal. Perhaps she thinks it is unnecessary? Continue reading
Dr Iyiola Solanke
It is perhaps fitting that in 2013, 21 years after it was introduced in the Treaty of Maastricht, Union citizenship appears to have come of age. Although described in Grzelczyk as the ‘fundamental status of nationals of the member states’ the privileges of this status have to date primarily been enjoyed only when nationals left their member state. It complemented national citizenship rather than existed alongside it. The only exception to this rule was seen in the recent Zambrano case, where AG Sharpston suggested that stationary Union citizens should enjoy rights as well as migrant EU citizens. The Court did not affirm this reasoning in its decision but did find that the baby Zambrano citizens should not be deprived of the ‘genuine enjoyment’ of EU citizenship in their member state of birth. The Third Chamber of the CJ has now affirmed the idea that Union citizenship can be enjoyed at home. This significant shift in EU citizenship law was announced in a short judgement revolving around Mr N, a young man who was refused education finance in Denmark, a social advantage that has been considered by the Luxembourg court many times. Continue reading
Dr Iyiola Solanke
Can an employer compel a Christian employee to: a) remove jewellery worn to manifest religious belief or b) carry out workplace duties which are felt to contravene central tenets of their faith? How far must employers go to accommodate religion and belief? Do they have to accommodate believers, whose ‘commitment to religion ‘involves not just participation in the worship and corporate life of the religion concerned but adherence to its system of values’ in a way that influences their behaviour in their daily lives, outside the context of the religion’s corporate life? Must organisational aims respect religion?
Since the introduction in England and Wales of the Employment (Religion and Belief) Regulations in 2003 – in avowed implementation of Directive 2000/78/EC (the Employment Equality Directive) – , domestic courts in the UK have understood the requirements of EU law to place only a limited obligation upon employers to recognize and accommodate the religious beliefs of employees in the workplace: Muslim claimants such as Mohmed and Azmi were unsuccessful in gaining legal support to wear a long beard or the hijab; Christian claimants such as Mba have not persuaded judges that their religion should relieve them from Sunday working. Of course (national law implementing) EU law in this area is intended to be interpreted in a manner which is also consistent with the requirements of the ECHR (see R (on the application of AMICUS–MSF section, NUT and others) v. Secretary of State for Trade and Industry  ICR 1176 (EWHC, Admin) ). Strasbourg jurisprudence seems to be supportive of this stance with its dual approach to Article 9 ECHR on freedom of religious expression. In Kokkinakis, it said that religious freedom “implies freedom to manifest ones religion. Bearing witness in words and deeds is bound up with the existence of religious convictions” but it is agreed that this right is not absolute – Continue reading
Dr Iyiola Solanke
In two posts Dr.Iyiola Solanke examines the issues of race and policing within the EU. The first post summarised the Matrix Chambers and Leeds University School of Law Seminar on Black Experiences of Policing in the EU, held on the 24th May, while the second post goes on to examine the EU framework governing EU wide policing.
Policing in the EU
Policing first became an EU policy competence in 1992, when the Treaty of Maastricht created the tripartite pillar structure of the EU. Issues concerning policing were somewhat buried in the third pillar on ‘Justice and Home Affairs’ until 1997, when visa and asylum matters were ‘communitarised’ and the third pillar was re-focused on ‘Policing and Judicial Co-operation in Criminal Matters’ (PJCC). A new EU-wide ‘Area of Freedom, Security and Justice’ was declared to provide a context for such co-operation. The Lisbon Treaty has integrated this area of freedom, security and justice into the Treaty on the Functioning of the European Union (TFEU) as set out in Articles 67 to 89 TFEU. These provisions provide the EU with powers to act in a wide variety of fields including immigration and asylum (arts 77 – 80), cross-border crimes such as trafficking of humans, drugs or arms, computer crime, and money laundering (art 83). It also provides a framework for co-operation among the judicial authorities of the Member States in both civil and criminal matters through the European Judicial Co-operation Unit (art 86). Article 87 empowers the Union to establish ‘police cooperation involving all the Member States’ competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.’