Tag: Freedom of movement

Andrew Seow Xian Wen

 

Ideal application of EU law

Freedom of movement for EU citizens is enshrined in Articles 21 and 45 of the TFEU.[1] Before the Treaty of Maastricht in 1992, only the free movement of workers was facilitated, but this gradually expanded to involve all EU citizens. The CJEU decreed that freedom of movement for all citizens is “the destiny of the EU”,[2] and henceforth the modern trajectory of EU law has been towards that goal. Therefore, expulsions may be the most draconian measures that a state can take against foreign citizens and must be assessed comprehensively before being legitimately adopted.[3]

However, enforcing Articles 21 and 45 TFEU in a straightforward way is nullified by Article 5 TEU which places migration issues (concerning the movement of EU citizens) in the hands of the national court. [4] This means that the EU can only issue directives, which set out the purpose member states must work towards. Directive 2004/38, the Citizens Rights Directive” (CRD) makes clear that two conditions must be met before an expulsion of foreign EU citizens is warranted.[5] In general, the conditions for denial of free movement are that migrants (EU citizens moving across the EU)

i)                    Must have insufficient resources to sustain themselves such that they become a burden to social assistance services

ii)                  Be a sufficiently serious threat to public security.

These factors must be assessed with the principle of proportionality, and on an individual basis.[6]

The Directive aims to balance unfettered EU citizen migration within the Schengen area against the strain on social assistance systems that a flood of immigrants would bring to host countries. At present, policy-makers have attempted to strike a balance by imposing that citizens must achieve self-sufficiency in a reasonable timeframe (3 months) in order to stay in a host country without restriction. However, it might be argued that EU law is not applied evenly across the board, and may very well be skewed against the Roma.

 

Reality 1: EU law is skewed against the Roma

Faced with persecution back in their home countries of Bulgaria and Romania, some Roma have fled to France.[7] However, because they are not formally schooled and cannot obtain work permits in France, the Roma, unable to fulfill the conditions set out in the CRD, cannot prove ‘sufficient resources’ by employment. Many take to recycling glass, playing music on the street, or begging. For the authorities, this ‘deviant’ manner of obtaining income does not count towards fulfilling the conditions of “self-sufficiency”.[8] Additionally, if construed very widely, France may deem repeated thefts, begging, or illegal occupation of land to be ‘sufficiently serious threat to public security’ whereby two grounds to expel Roma are fulfilled.

There was an additional catch for the Roma in the seven years preceding 2014: temporary restrictions applied to Romania and Bulgaria (‘transitional measures’) meant that Roma must apply for work permits in order to be gainfully employed in France and stay beyond 3 months.[9] With the French government’s systematic programmes of expulsion in place, it seems impossible that the very individuals they are trying to expel will be granted work permits to stay on. Hence we see that the ‘transitional measures’, combined with the CRD conditions, when applied to the realities of the Roma, disproportionately affect them in terms of free movement into France.

 

Reality 2: French implementation does not fulfill the Directive

The conditions for expulsion in the 2004 Directive were drafted with a high threshold, and must all be fulfilled before expulsion can be administered. However, three French sources of law clearly violate the spirit of the Directive. They not only lower the standard for determining who is a threat to the public, but also make it possible to expel foreign EU individuals on the basis of one condition.

Firstly, in July 2010, the French passed Immigration Bill [No. 542] (2010 Immigration Bill) which lowered the threshold of what constitutes serious threats to public security, by conflating ‘aggressive begging’, ‘illegal land occupation’; and ‘repeated theft’, with a serious threat to public security.[10] The Bill introduced a judicial process that disregards the principle of proportionality by individual review and it potentially constitutes an infringement of fundamental human rights vis-à-vis ‘collective expulsion’.[11] Protesters[12] believed that the Bill disproportionately affected the Roma, who take to begging, theft, and squatting through a combination of personal beliefs, unfortunate circumstances, and the inability to obtain work permits due to discrimination.

Secondly, in October 2010, the French pledged to ensure the correct transposition of the 2004 Directive. As the original deadline had long passed, and the Commission set an additional deadline for France who begrudgingly met it within 1 hour of the new deadline.[13] Although this new Law No. 2011-672 on Immigration, Integration and Nationality (2011 Immigration Law) used similar wording to the Directive and was thought to advance the law in its spirit, it became clear that two Directive Articles were transposed inappropriately.

i)                    Article 27 of the CRD which transposed into Article 39(3) of Immigration Law set out that an order to leave the country (OQTFs –obligation de quitter le territoire français) may be issued to genuine, present serious threats even if the Roma stayed for less than 3 months.[14] Human Rights Watch (HRW) states their view that this is clearly against the wording of the directive as there should not be any conditions limiting foreign EU stay.[15] While such security concerns obviously apply to all individuals in a host country, this article, read together with the 2010 immigration bill, means that those Roma who have stayed less than 3 months can be legitimately expelled for squatting, and ‘aggressive begging’ – a disproportionately severe punishment.

ii)                  Article 14 of the CRD transposed as Article 22 of Immigration Law stated that an EU citizen may be expelled if he constitutes an ‘unreasonable burden on the social assistance system’ and this applies to citizens that have stayed for less than 3 months in France. When the European Parliament questioned the appropriateness of Article 22, it was clarified that this provision only applies in ‘clearly repetitive cases where applicants’ sole purpose of renewing the stays of less than 3 months is to circumvent the conditions for residence’ laid down in the directive.’[16]

On the evidence, 80% of the incoming Roma from Bulgaria are reliant on social support services in those countries,[17] and France’s fear of them taking advantage of the system is hence not unfounded. However, this is no reason to contravene EU Directives and attempt to expel them. Rather, these Roma clearly represent a humanitarian problem akin to refugees and must be assisted to the fullest extent as EU citizens. Deported Roma could face more extensive persecution and human rights violations of violence upon their return to Bulgaria and Romania as rule of law is less prevalent.

The two transpositions show a clear watering down of the procedural safeguards and are inconsistent with the requirements of the Directive. The inadequate transpositions mean that the Roma do not have guaranteed time to establish an economic presence or prove self-sufficiency, but rather can easily be thrown out due to lowered standards of what constitutes a security breach, or when the French Conseil d’Etat decides that such immigrants are potentially reliant on social services.[18]

Thirdly, the French Civil code conflates a dependency on social assistance services with a threat to public order.[19] France would allow for an immediate expulsion upon discovering an alien’s threat to public order or ‘abuse of law’, where abusing the social services would constitute a threat to public order. Combined with the requirement for a work permit ‘transitional measure” the effective transposition of the directive into French law transforms the test into a single step one with no need for individual review. As a result, desperate and poor EU citizens are prevented from finding work, and are subsequently expelled because they need state support rather than retained because they need help.

Reality 3: Half-hearted implementation

It is submitted that the watering down of the safeguards combined with an anti-Roma sentiment – President Sarkozy reportedly state that the Roma were to be ‘systematically evacuated’[20] – means that the law will be implemented to target rather than to protect the Roma.

HRW examined 198 OQTFs in 2010 and 2011 and found they embodied 4 traits implying a clear disregard for proportionality.[21] It was found that the OQTF’s were in standardized form, and virtually identically completed with no evidence of any social welfare assistance received. Additionally, there was a pro-forma declaration attached where the Romani stated they were begging and had no medical insurance. The rights of these people were clearly not taken seriously and the protections implemented were either half-hearted or not implemented at all.

However, there are cases where some courts threw out OQTFs because there was no proof that the Romani in question were security threats. This might show some extent of proportionality where individual assessments are made when it comes to OQTFs but these cases (wrongly so) are the exception rather than the norm.[22] Point in case, a draconian second mechanism exists to compliment the OQTF – a prefectoral order to remove persons to the border, (arrêté préfectoral de reconduite à la frontière, or the APRF)[23], which is issued in line with the provisions of the 2010 Bill to deem foreign citizens as security threats. It only allows a 48 hour appeal period after which persons are forcibly removed – an almost irrefutable burden.  It was held to be valid in EU law when used in clearly repetitive cases’ but arguably has much wider application in reality. Indeed in 2009, 10,000 Romani were expelled,[24] followed by 11,000 in 2010, and 13,241 in 2011.[25] It is highly doubtful the law was applied in the spirit of the Directive in all these cases.

 

Conclusion

Immigration is a highly sensitive issue and not only potentially depletes a country’s social services, but is a key political topic that if addressed against the wishes of the general population can spell the end for a politician. France has clearly breached EU law by misapplying the Directive, and by infringing the principles of proportionality and human rights by allowing ‘collective expulsions’. Although commentators have suggested taking France to task under the Treaty to face economic sanctions,[26] this overlooks the well-founded French concern that Roma present in France are an actual burden to social services, and that incoming Roma would add to this burden.

The EU politicians must reframe the Roma plight under the lens of “Development and Humanitarian Aid” rather than “Migration”. This would not only underscore the emergency of the situation, but would most importantly, eliminate improper transposition since EU law directly applies and must be enforced to the letter.