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Two Big Euro Cases
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Despite having already signed off for Christmas, I’ve been sitting waiting all morning to get on at Hatton Cross and decided to catch up on the two Big Euro Cases from this week. Both are from the Court of Justice of the European Union.
The first is NS v United Kingdom (C-411/10), and you would have had to have been living in a bunker not to have caught some of the very extensive press coverage of the judgment. This case perhaps inevitably follows from the Big Fat Greek Test Case in the other major Euro court, the European Court of Human Rights. In NS the court held that where the asylum system has broken down in a Member State then Dublin II removals should not occur. The outcome is no surprise after the Advocate General Opinion. Removals to Greece under Dublin II are now off the agenda for the foreseeable future. It will be interesting to see what comes of challenges to Dublin II removals to other countries, including Italy and Cyprus.
The other case is a linked one, Ziolkowski and Szeja v Germany (C-424/10, C-425/10). This concerns the qualifying nature of residence that counts towards permanent residence for the purposes of the Citizens Directive. The court reaches two separate conclusions.
Firstly, legal residence under national laws not in compliance with the requirements of the Directive does not contribute to the acquisition of the right of permanent residence. This might include residence as a visitor, for example.
Secondly, though, periods of residence completed by a national of a non-Member State in the territory of a Member State before the accession of the non-Member State to the European Union does contribute to the acquisition of the right of permanent residence, provided those periods were completed in compliance with the requirements of the Directive. This could be residence as a student or a work permit holder of some sort, for example.
The outcome is a disappointing one for those who thought the ‘legal residence’ requirement of the Directive was plain and simple and not tied to the Directive, but at least we now have clarity.
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5 responses
I’ve been pondering over the implications of NS ever since it came out. On the one hand, I think it is a great decision for many reasons (not only because of transfers to Greece but also the reference to the European safe third country concept in the procedures directive). Obviously, it would be very helpful to asylum seekers who manage to avoid a return to the frankly abysmal Greek reception system.
On the other hand, I’m afraid Member States will react and I think the discussion of the new Schengen rules and the possibility to reinstate borders temporarily might now be seen as an appropriate answer. If we add to that the fact that now states on the external borders will have an incentive to provide lower reception standards in order to encourage asylum seekers to move to another country, I can easily see asylum seekers being trapped in such countries, living in appalling conditions. Yes, such Member States can be taken to the ECJ on the basis of non-compliance with EU Directives (esp. Reception Conditions) but, looking at Greece, that doesn’t seem to be very effective (the Commission started the non-compliance procedure years ago).
“…but also the reference to the European safe third country concept…”
Interesting points you raise. I’m thinking of the complaints in Brussels and Prague when Canada reintroduced the visit visa requirement for Czech citizens because of issues of claiming asylum in Canada.
The Czech Gov’t maintains that a Czech citizen can’t be a genuine refugee because the Czech Rep. is a stable democracy with the rule of law. That issue is not relevant to this case.
But there is also the EU’s claim that an EU citizen cannot be a genuine refugee for the same reasons. It is Canada’s partly contrary view which contributed to the visa requirement (some genuine Czech citizen refugees but many non-genuine claimants).
Now that the ECJ talks about “systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State”, the question arises as to whether member states, the EU Commission and others will admit that being in the EU does not guarantee full observation of human rights.
Given that EU countries don’t accept that each others citizens can apply for asylum, this would prove Canada right. Juducially at least that seems to be the case.
Obviously the consequence within the EU is that either asylum procedures must genuinely meet a minimum level everywhere or the Dublin II system as it stands needs to be suspended or appropriately amended.
“On the other hand, I’m afraid Member States will react and I think the discussion of the new Schengen rules and the possibility to reinstate borders temporarily might now be seen as an appropriate answer.”
The British Government might suddenly find itself capable of effective border control, or deal with repeats of the issues surrounding that, May and public servants which occurred this year.
Almost all periods of residence as a visitor will be within the definitions of Article 6 on residence in the “first 3 months”. It is easy to meet the requirements: possession of a passport!
But oddly the ECJ ignores Article 6 in this case:
“but at least we now have clarity.”
Indeed. Too late for A8 nationals who may have been in the UK with LTR before their countries joined. But now we will see when the HO accepts the case and begins to issue permanent residence documents to A2 nationals who meet the criteria of the directive and have been in the UK for five years. The UKBA will need to amend the European Casework Instructions accordingly.
What about non-EU family members who were in the UK prior to becoming a family member of EEA national. Does that time spent in the UK as non-eu student count?