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?

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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

Clarification of the Article 9(2) ECHR qualification? Eweida and Others v the UK

BlogPhotoDr 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[1] were unsuccessful in gaining legal support to wear a long beard or the hijab; Christian claimants such as Mba[2] 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 [2007] 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[3], 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

Policing in the EU: A Way Forward? Part 2.

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.’

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Race and Policing in the EU: A Way Forward? Part 1

Dr Iyiola Solanke

In the following two posts Dr.Iyiola Solanke examines the issues of race and policing within the EU. The first post summarises 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 framework governing EU wide policing.

The first post on EUtopia in 2012 covered the belated conviction this year of two white men for the racist murder of the black Londoner Stephen Lawrence in 1993. In that post, I highlighted six lessons that could be learnt by the EU on the promotion of racial justice and racial equality using its legislative competence under Article 19 TFEU and Race Directive 2000/43, and the powers of the CJEU. The piece suggested: the collection of racial data to gain a clear idea of the parameters of the problem, the implementation and use of existing legal powers designed to combat racism, examination of the powers of the police and the way in which they are used, the use of public inquiries to rout out and address institutional racism, the clear prohibition of the N-word in public life,  and the creation of a racially diverse EU legal system that is sensitive and responsive to the concerns of black Europeans.

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Review: Engineering Equality: An Essay on European Anti-Discrimination Law by Alexander Somek

Dr. Iyiola Solanke

The evolution of anti-discrimination law (ADL) has been an incremental affair: Britain was the first European country to introduce non-contractual legal protection against discrimination after WWII – in 1965 it passed its first Race Relations Act which provided a limited remedy for protection against racial discrimination in public places. This Act was amended four times – in 1968, 1976, 2000 and 2003 (Solanke, 2009). In 1975, protection against sex discrimination was introduced. Since then, legal remedies in Britain have expanded to cover age, disability, gender reassignment, marriage and civil partnership, pregnancy, sexual orientation, religion and belief. These are now brought together in a single statute – the Equality Act 2010 (EqA 2010). The EU began its foray into ADL in 1957: the Treaty of Rome prohibited discrimination on the grounds of nationality – this was the logic underpinning the ‘four freedoms’ (free movement of persons, goods, services and capital) – and on the grounds of sex. In 1997, after years of lobbying by civil society organizations across the member states, it introduced a legal amendment to prohibit discrimination on the grounds of age, disability, race and ethnic origin, religion and belief and sexual orientation (Art 19 TFEU). Subsequent Directives, most notably Race Directive 2000/43 and the Employment Equality Directive 2000/78, have obliged the member states to introduce legal prohibition of discrimination on these grounds into their legal systems. These systems of protection did not develop entirely independently – for example, the amendments to the British Race Relations Act in 2003 were made in response to the EU Race Directive 2000/43.

In this ambitious book, Engineering Equality, Alexander Somek attempts a root and branch analysis of the evolving anti-discrimination law of the European Union, interrogating both its philosophical premises and its current practices. Somek has much to say, but little that is positive, about ADL and its advocates. The mechanical image evoked by the title should prepare the reader for his impatience with the theme. He wastes no time dismissing ADL as the ‘darling subject of ‘progressive’ legal scholars and steadfast libertarians alike’ (fn 2). He asserts that these groups are undermining their own goals, for the more successful ADL, the weaker social policy in the EU becomes: its ‘ascendancy is concomitant to a displacement of that full blown social policy which would be required for its own realization’ (18). Further into the text, he describes ADL as ‘a field of law whose mode of realization is also the cause of self-obfuscation’ (93) and ADL norms as ‘having the same deadening effect on the perception of social reality as moralistic attributions of evil schemes’ (105). His stance should not deter the reader: the book warrants a close read of its carefully crafted argument. My own conclusion after doing so is that it has a number of strengths and weaknesses. I will discuss three strengths (the EU-level of analysis; the clear analytical framework and the challenge to neoliberalism) and three weaknesses (the lack of historical perspective, conflation and universalism).

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ABuse of (Home Office) Power

Dr. Iyiola Solanke

The case of AB v Home Office raises the question of whether the doctrine of state liability is robust enough to remedy situations where national officials misapply EU law. The case concerned Ms C, a Bolivian national, who entered the UK as a student in 2006. Soon after arriving she met Mr B, a Swedish citizen who had lived in the UK since about 1996. Their daughter was born in London in May 2007: as the baby girl was given Swedish citizenship, she was like her father a migrant Union citizen. Ms C’s student visa expired in January 2008: in March 2008 she applied to the Home Office for an EEA residence card. The ground cited was the existence of a durable relationship with Mr B, a Union citizen and at that time a migrant EU worker. The events that befell them are noteworthy for many reasons but this note will focus on just two: the rights of third country nationals who are not ‘family members’ under EU citizenship law and the limits of the remedy of state liability

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