Zambrano: Unwritten?

Dr Iyiola Solanke

National courts have continued to deal with the consequences of Zambrano. Although Dereci and MacCarthy clarified that compulsion to leave related solely to practical consequences, the scope of ‘practical consequences’ was not determined by the CJEU. While the rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave, would the removal of the rights to welfare engage the Zambrano right?

This question was discussed in a previous post on the ‘Zambrano Amendments’[1] introduced in 2012 at the same time as changes were made to the EEA Regulations 2006 implementing Citizenship Directive 2004/38 to give effect to the Zambrano decision.[2] These ‘Zambrano Amendments’ banned Zambrano carers from all mainstream benefits under national law – employed and unemployed Zambrano carers were henceforth excluded from eligibility for social security benefits, child tax credits and housing entitlements. In HC and Sanneh, it was decided that this blanket refusal of welfare benefits was legal – it did not compel a Zambrano carer to leave the EU. The substance of the Zambrano right to reside remained intact even if the Zambrano carer was left destitute and without adequate resources to care for the EU citizen child.

LJ Elias introduced in Harrison[3] what has become the standard dicta for understanding the Zambrano principle. Dismissing a broad approach to the CJEU ruling, he stated:

‘… The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen’s rights would have to be protected (save for the possibility of a proportionate deprivation of rights).’

The Zambrano principle is thus limited to situations where the EU citizen is irrefutably in practice forced to leave the EU. The CJEU has not yet had an opportunity to comment on this approach and it has continued to be applied, most recently in Hines v London Borough of Lambeth[4] where the removal of one parent was found compatible with the Zambrano principle. Surprisingly, it was not applied in R (Osawemwenze) v SS Home Department[5] where both parents were told to relocate with two small children who may have been EU citizens. These cases continue the theme raised in my last post on the compatibility of rights under EU and ECHR law, in particular the rights of the child. The cases also provide further insight into the national judicial response to the Zambrano ruling.

Maureen Hines, a Jamaican citizen without permission to remain in the UK, was refused housing assistance despite being mother to a 5-year old boy, Brandon, who was born in the UK and thus an EU national. The reviewer for Lambeth decided that even if the refusal caused Hines to leave the UK, Brandon’s father, who had an EU right to permanent residence in the UK, could look after him: although his parents had separated, Brandon did spend two days and nights a week with his father. Continue reading

Regulating spousal reunion under EU and Convention Law

Dr Iyiola Solanke

Countries in Europe have increasingly adopted immigration rules that explicitly test an applicant’s ‘ability to be integrated’ into the host society. This controversial idea goes beyond formal citizenship acquisition to prioritise, for example, the specific level of ‘attachment’ with the host society or level of knowledge of the host country language. Such individual capacity tests, which in practice particularly affect black Europeans and third country nationals from Africa, Asia and Latin America, have recently come under legal scrutiny before the CJEU in Luxembourg and the ECtHR in Strasbourg. In Dogan v Germany national authorities in Germany refused family reunion to a migrant Turkish worker on the ground that his wife could not speak German; in Biao v Denmark the Danish authorities refused the application of a Danish citizen for family reunion on the basis that he and his wife had stronger attachments to Ghana than Denmark. The judicial evaluation of these tests has also differed – the Danish rules were upheld in Strasbourg (albeit by a narrow majority of 4:3) but in Luxembourg Advocate General Mengozzi has suggested that the German decision be declared incompatible with EU law by the CJEU. The reasons for these decisions will be discussed below. The cases provide an opportunity to assess the approach to immigration rules and family reunion under these two systems of law and raise again a central question about accession: while the EU may formally accede to the Convention, can and will the CJEU see issues in the same way as the ECtHR?

The Facts

In 1998 Mr Dogan, a Turkish national, had exercised rights provided in the 1963 EU-Turkey Association Agreement to establish himself as a company director in Germany. In 2002 he was granted permanent residence in Germany. In 2007 he married the mother of his four children, an illiterate Turkish woman. In 2011, Mrs Dogan applied for a visa for the purpose of reunification of the whole family with her husband in Germany. At her interview, she said nothing beyond repeating three memorised sentences. Her application was refused due to no basic knowledge of the German language as per Article 2(8) of the Aufenthaltssgesetz 2008. A second application requesting a visa for herself alone was also rejected for the same reason. The second refusal was challenged and the court in Berlin stayed the case to send two questions to the CJEU concerning first, the interaction of this new German rule with the Association Agreement and secondly, its compatibility with Article 7(2)(1) of Directive 2003/86 on the right to family reunification.

Mr Biao was born in 1971 in Togo, where he lived until the age of 6. However, he spent many years living with an uncle in Ghana and completed his schooling there. At the age of 22, in 1993, he unsuccessfully applied for asylum in Denmark. In 1994 he married a Danish woman, and under the Danish Aliens Act thereby became eligible for a residence permit; this permit became permanent in 1997. He divorced his wife in 1998 and in 2002 at the age of 31 became a Danish citizen. In 2003 he married a 24 year old Ghanaian woman – she applied for a residence permit for Denmark, which was refused on the basis that neither Mr Biao or his wife could prove that their ‘aggregate’ ties were stronger to Denmark than to any other country ie. Ghana, as required under the Aliens Act. Mrs Biao appealed the decision but as it had immediate effect, the couple moved to Sweden where in 2004 they had a son. The son acquired Danish nationality from his father. The Biaos complained to the Strasbourg Court that the refusal by the Danish authorities to grant them family reunion in Denmark breached Article 8 of the Convention, alone and in conjunction with Article 14. Continue reading

Jobless EU migrants and housing benefit

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[1] 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[2] 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[3] but when is an EU migrant ‘jobless’?

The ‘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.[4]

The Citizenship Directive (CD) adopted in 2004 guarantees migrant EU workers and other ‘qualified persons’[5] 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

HC and Sanneh – ‘genuine enjoyment’ does not include social welfare

BlogPhotoDr 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[1] –  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[2], this liberates them from domestic violence.  For others who may be abandoned, like Sanneh[3], it provides a lifeline preventing expulsion to unhappy lives elsewhere. Continue reading

Black experiences of policing: the conversation continues

TrayvonDr 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[1] in the USA provided a global backdrop for the Roundtables. The ‘not guilty’ verdict [2]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.[3] 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

UK treatment of EU migrants under scrutiny in Brussels

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.[1] 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[2], as well as the public sector equality duty (PSED) in Section 149 of the Equality Act 2010.[3]

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

Addressing Violent Racist Policing – A Priority for Policing in the EU

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.[1] 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.’[2] Continue reading

The UK Immigration Bill and EU law

immigration bill and EU lawDr 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?

Continue reading

Racism, Human Rights and Policing Wrongs

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

Union Citizenship comes of age: Case C-46/12, LN v Styrelsen for Videregaende Uddannelser og Uddannelsesstotte

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