Case Comment: Minister voor Immigratie en Asiel v X (C-199/12) Y (C-200/12) and Z

Anita PicAnita Davies

The case concerned the interpretation of Council Directive 2004/83/EC on minimum standards for the qualifications and status of third-country nationals or Stateless persons as refugees or as persons otherwise needing international protection and the content of the protection granted.

The applicants in this case were from Sierra Leone, Uganda and Senegal. They had all applied for asylum in the Netherlands between 2009 and 2011 and in support of their applications had claimed that they should be granted refugee status on the grounds that they had reason to fear persecution in their respective countries of origin on account of their homosexuality. In Sierra Leone homosexual acts are punishable by a sentence of imprisonment of 10 years to life. In Uganda anyone found guilty of ‘carnal knowledge of any person against the order of nature’ is liable to a term of imprisonment for which the maximum sentence is life. In Senegal there is a sentence of one to five years imprisonment or 100,000 – 500,000 CFA francs. The applications for asylum were refused. Following a series of appeals, the Raad van State made an application to the CJEU asking for clarification on the content of Article 9 (acts of persecution) and Article 10 (members of a particular social group) of the directive.

The questions referred were:

  1. Whether foreign nationals with a homosexual orientation form a particular ‘social group’ for the purposes of the Directive;
  2. Which homosexual activities might fall within the scope of the Directive:

(a) whether gay men could be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution;

(b) whether gay men could be expected to exercise restraint, and if so, to what extent, when giving expression to that sexual orientation in their country of origin, in order to avoid persecution;

(c) whether distinctions can be made between forms of expression which relate to the core area of sexual orientation and forms of expression which do not).

3. Whether the criminalisation of homosexuality amounts to persecutory treatment per se. Continue reading

Case Comment: AG’s Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (C‑199/12, C‑200/12 and C‑201/12)

Karon Monaghan QC

On 11th July 2013, Advocate General Sharpston delivered her Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (joined Cases C‑199/12, C‑200/12 and C‑201/12). The case concerned three nationals, X, Y and Z, of respectively Sierra Leone, Uganda and Senegal, all of whom are gay. They sought refugee status in the Netherlands, claiming a well- founded fear of persecution in their home countries based on their sexual orientation, relying, inter alia, on the fact that homosexuality is criminalized in Sierra Leone, Uganda and Senegal.

Their claims to refugee status fell to be considered under the EU Qualifications Directive 2004/83/EU (‘on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’). Replicating provision made under the Geneva Convention, the Directive defines a ‘refugee’ as a ‘third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country’. Further, as to persecutory acts, the Directive provides that  ‘9(1) Acts of persecution within the meaning of Article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms [including Articles 2 and 3]; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)’; ‘9(2). Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment’. 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

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

Case Comment: AG’s Opinion in Giersch & Others (C-20/12)

Michèle Finck, University of Oxford

The reference for a preliminary ruling brought by the Administrative Court of Luxembourg in the Elodie Giersch matter essentially concerns the question of whether a recent Luxembourg law that makes funding of higher education studies conditional upon residence in Luxembourg is compatible with European Union law, more specifically the requirement of non-discrimination on the basis of nationality. The aid can be received for studies undertaken within Luxembourg but also anywhere else.

The law is particularly controversial as it excludes from its benefit the children of frontier workers who travel every day from Belgium, Germany and France to the Grand Duchy to work. Currently, around 44% of those employed in Luxembourg are frontier workers. Over 600 applicants had brought proceedings before the national court after they had been refused financial aid. They argued that the fact that they were treated differently from the children of workers residing in Luxembourg constitutes an infringement of the principle of free movement of persons. Continue reading

Gender Quotas on Corporate Boards

Julie Suk

This piece originally appeared on europaeuslaw and is reposted here with permission and thanks.

This week, the European Commission unveiled its proposal for an EU directive on gender balance on corporate boards.  Gender balance means that women must constitute at least 40 percent, and not more than 60 percent, of the board to which the requirement applies.  Over the last few years, there has been a robust debate about the importance of women’s participation in economic decisionmaking, catalyzed in part by Norway’s success in requiring gender balance on the corporate boards of its publicly traded companies.  Supporters of measures to achieve gender balance have focused on the importance of gender equality to the good governance of well-functioning legitimate institutions, including corporations.  Studies cited by the Commission in its proposal claim that women’s participation in leadership improves companies’ economic performance and growth.
Several member states have passed legislation imposing gender quotas on corporate boards in the last several years (Spain, Italy, Belgium, the Netherlands, and France), or are in the process of doing so (Germany).  However, some of these countries have joined the UK in opposing EU action in this field.  The sticking point is sanctions:  The recently adopted gender quotas laws in various jurisdictions impose a range of sanctions for boards that fail to comply.  None of the EU member states have followed the Norwegian model of dissolving companies by court order should they fail to reach gender parity.  In France, the law provides for the invalidation of any nomination of a board director if appointing the candidate would cause the board to exceed 60 percent of one gender.  Continue reading

Company Boards and Thwarted Quotas: the Glacial Pace of Change

Aileen McColgan

Women hold fewer than one in seven seats on the boards of the largest listed public companies across the European Union.[1] In Norway, where a 40% quota has been in force for some time, they account for 42% of Board positions. And in France, which introduced quotas in January 2011, the proportion of women on Boards increased from 12% to 22% in a single year.[2]

Viviane Reding, vice president of the European Commission, has been spearheading efforts to introduce quotas at EU level for women on Boards, explaining in an article in the New York Times on 10 October 2012 that “I tried first with persuasion… Voluntary measures have not achieved any progress, and if we continue at that pace we will need 40 or 50 years.”[3]

It was being reported in early September 2012 that the Commission was to propose mandatory quotas of 40% women in non executive director positions by 2018 in publicly owned companies, 2020 in private companies employing at least 250 people or with a revenue of €50 million.[4] Enforcement would be by fines and/or exclusion from public contract. Reding was quoted in the New York Times stating that quotas would not be enforced in the absence of suitably qualified women but that a list of over 7,000 ‘board-ready’ women had been drawn up by European business schools and others. Britain, in which women currently account for a record 16% (just under one in six) of FTSE 100 boards,[5] and 2.5% of FTSE 100 chief executive positions, was reported to be leading the opposition. Continue reading