Individual rights in EU migration and asylum law
By Catherine Warin, PhD (University of Luxembourg), co-founder and president of Passerell, vice-president of the Luxembourg Bar’s immigration and asylum commission; author of Individual Rights under European Union Law. A study on the relation between rights, obligations and interests in the case law of the Court of Justice (Nomos, 2019).
Individual rights have been a key concept of EU law ever since the CJEU laid down its methodology for identifying such rights in Van Gend en Loos and Defrenne. These founding cases made clear that individual rights are correlatives of obligations laid down by EU law, and are triggered into existence by individual interests in the fulfilment of these obligations. Awareness of this relationship between rights, obligations and interests allows to think about rights in a flexible and coherent manner, which is essential in the increasingly complex field of EU migration law.
The dynamic correlation between rights and obligations
The correlation between rights and obligations is key for identifying rights in primary and secondary EU law. Just like in the legal theory of rights inspired by Hohfeld’s influential work, one obligation and the corresponding right can be characterized as two sides of the same coin: rights can be deduced from obligations, and conversely, the ‘obligational’ aspect of a norm can be deduced from the right that it expressly grants. When considering rights in EU law, however, it is important to stress that this correlation functions in a dynamic way. It is not a tool for abstractly determining whether a given provision gives rise to rights; rather, it means that the degree of discretion allowed by the provision (assessed by looking at clues such as clarity, unconditionality, and precision) is inversely proportional to the probability of identifying a right in concrete circumstances.
By way of illustration, consider Baumbast, a classic case on the free movement and residence of EU citizens: the CJEU therein held that the right to reside within the territory of the Member States under Article 18(1) EC (now 21(1) TFEU) ‘is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty’ and that Mr Baumbast could rely on this provision, ‘purely (as) a citizen of the Union’. This right is not unconditional, since it ‘is conferred subject to the limitations and conditions laid down by the Treaty and by the measures adopted to give it effect’; however, ‘those limitations and conditions must be applied in compliance with the limits imposed by Community law (…)’. I.e., the provisions on EU citizenship give rise to rights in so far as they are clear and precise, and, if they are not unconditional, when the required conditions are satisfied.
These individual rights are mirrored by correlative obligations of Member States, as emphasized in a 2006 case of Commission v. Belgium. The Commission had received complaints about Belgian legislation and administrative practice concerning the conditions for granting residence permits and orders to leave Belgian territory issued to citizens of the Union. The CJEU held that since the right of residence under Article 18 EC is not unconditional, ‘it is for the citizens of the Union to adduce the necessary evidence that they meet the conditions laid down in that regard by the relevant Community provisions’; however, automatic deportation impairs ‘the very substance of the right of residence directly conferred by Community law’. The clear and precise right of residence is subject to conditions, but Member States demanding more than fulfilment of these conditions are in breach of their obligations.
The rights-obligations correlation is also verified in EU asylum law. As per the Qualification Directive, a ‘well-founded fear of persecution’ is the essential condition for granting refugee status. This translates into several more precise conditions, making the right to refugee status very dependent on the assessment of concrete circumstances, which are often (at least in part) external to the EU’s territory and unstable. Nevertheless, as clarified in T., where these conditions are met, ‘Member States are to grant refugee status to all third country nationals or stateless persons who qualify as a refugee’ in accordance with the Qualification Directive, and they ‘exercise no discretion in that respect’.
Making sense of EU law’s multiple sources of rights and obligations
The correlation between rights and obligations is dynamic also in the sense that it applies not to isolated norms, but to norms integrated in the EU’s rich and ever-evolving legal architecture, composed of many sources of obligations and rights.
For instance, the right to international protection (refugee status or international protection) is dependent on the well-founded fear of persecution, i.e., an infringement of a basic human right based on the individual’s belonging to a particular racial, national, social or religious group or his holding of a particular political opinion. This means that the analysis of a case will often give rise to issues for defining not just the right to international protection, but also other rights. Among many other examples, take the well-known Y and Z judgment, concerning Pakistani nationals and members of the Ahmadiyya religious community whose right to religious freedom was being infringed. The key question here was which kind of violation of this right guaranteed by Article 10(1) CFR constituted ‘persecution’ within the meaning of the Qualification Directive. The judgment established that the competent authorities must take account not only objective factors, but also the subjective perception of the individual that the practice that he/she is prohibited from performing constitutes a necessary element in the exercise of his/her faith.
Another example of the multiple connections between various rights – and sources thereof – is to be found in the case law on the procedural rights of asylum seekers. These rights are laid down in the Procedures Directive and other secondary law instruments forming the Common European Asylum System, as well as in the general principles of EU law and EU primary law. Precisely, following the entry into force of the Charter of Fundamental Rights (CFR), the CJEU was faced with the discrepancy between the scope of Article 41 CFR, providing for the right to good administration, and the scope of the general principle of good administration on which it was based. In a series of cases, Member State authorities argued that they did not have to observe the guarantees of Article 41, which was addressed only to the EU institutions. However, the Court, in the ensuing judgments (M., N., Mukarubega, Boudjlida) made clear that the guarantees enshrined in Article 41 CFR reflected general principles of EU law and that, as such, they were binding not just on the EU institutions but also on Member State administrations implementing EU law – including EU asylum law. Interestingly, in the pre-Charter era, the Court had developed the general principles gathered under the umbrella of ‘good administration’ by emphasizing the obligational aspect of these guarantees, which are now established fundamental rights. Thinking of rights and obligations as correlatives thus allows to make sense of the plurality of sources of rights that characterises the Union’s legal order, and to shed light on the complementarity between these various sources.
Effectiveness and derived rights in EU citizenship law
Another important feature of the CJEU’s case law on individual rights is that it is rooted in the principle of effectiveness of EU law. Following this logic, it is in the Union’s best interest that as many individuals as possible, by pursuing their own interests and claiming their rights, contribute to the enforcement of the obligations laid down by Union law, and ultimately to the realisation of the Union’s objectives. EU citizenship law is a prime example of that, especially if we look at the concept of derived rights.
As early as 1992 (Singh) and more clearly in 2002 (Carpenter), the CJEU accepted that, to ensure the free movement of workers and economically active individuals, it was necessary to guarantee that their family members could accompany them. The abovementioned Baumbast case was the turning point where the concept of derived rights became central in the development of Union citizenship. The notion of dependency between Union citizens and their family members has been essential for identifying the derived right of the later to accompany the former.
This was further clarified in Zhu and Chen. As is well-known, in this case, a Chinese national was claiming the right to stay in the UK based on the right to free movement of her infant daughter, an Irish national. From the right of the child to stay in the UK, the Court derived the same right for the mother, without whom the child could not have effectively exercised her rights as an EU citizen. This illustrates how a single obligation on a Member State (to respect the freedom of movement and residence of an EU citizen) may translate into several correlative rights, including here, a right for the infant and a derived right for the mother. This is because, without granting a right to the latter, the right of the former (and the correlative Member State obligation) is emptied of its substance – and deprived of its effectiveness.
In addition, in Zhu and Chen the powerful effectiveness rationale overcomes the prohibition of abuse of rights. Indeed, the British government had argued that Mrs Chen should not be allowed to stay in the UK because she had intentionally given birth in Northern Ireland so that the baby would benefit from the Irish jus soli, and then gone back to the UK to assert her Irish (i.e. European) daughter’s right to stay. The abusive conduct, the argument went, should not be rewarded by acknowledging this right. The Court however held that such a conclusion would amount to allowing a Member State (the UK) to restrict the effects of another Member State (Ireland) granting nationality, and that this was prohibited by EU law. The 2014 McCarthy case confirmed that the concern for the protection of the ‘substance’ and effective exercise of EU citizenship rights has priority over the risk of abusive exercise of these rights.
Following the same effectiveness logic, the Rendón Marín and CS rulings have made clear that the fact that the non-EU parent and caretaker of a minor EU citizen should not be banned from the territory of a Member State for the sole reason that they have been criminally convicted, if that would result in also sending away the child from the territory of the EU. The reprehensible conduct of the individual claiming a derived right to stay in a Member State in order to ensure the effectiveness of the autonomous rights of an EU citizen matters little when balanced against the requirement of effectiveness of these autonomous rights. Pushing the logic even further, the Court has recently decided in Bajratari that a Union citizen minor has sufficient resources not to become an unreasonable burden on the social assistance system of his/her host Member State, despite his resources being derived from income obtained from the unlawful employment of his/her non-EU national parent.
Judgments that do not grant derived rights also help understanding the rationale behind the concept. In the 2011 McCarthy case, the Court essentially held that, since a dual Irish-British citizen had always lived in the UK, she had never exercised her right of free movement and her spouse could therefore not claim any derived rights to reside in the UK. The same concern for the effectiveness of EU citizenship rights applies in Iida, in which the Court explained that ‘the purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere with the Union citizen’s freedom of movement by discouraging him from exercising his rights of entry into and residence in the host Member State’ (para 68). The derived right loses its raison d’être when it would not help ensure the effective exercise of the EU citizen’s autonomous right.
Limiting the effectiveness rationale underlying individual rights under the Dublin system?
Guided by the effectiveness compass, the Court insists that any individual who has an interest in requesting the fulfilment of an obligation under EU law may do so before a domestic court. Importantly, and as established already in Defrenne, this applies regardless of whom this obligation was initially intended to protect (or of whether it was intended to protect anyone in the first place). Yet, this guiding principle does not always apply smoothly, as revealed by the case law on individual rights in the system currently framed by the Dublin III Regulation.
It is well known that asylum seekers entering the EU are not free to choose the Member State in which they may lodge their application. The Dublin Regulation lays down and prioritises the criteria for determining the Member State responsible for examining an application, and sets out the procedures for transferring those asylum seekers who apply in the ‘wrong’ Member State to the responsible Member State. Initially, the Dublin system made it very difficult for individuals to challenge transfer decisions.
The first possibility to do so was established in N.S. and Others, when several asylum seekers were to be transferred from Ireland and the UK to Greece based on the Dublin II Regulation. Taking into account the ECtHR’s case law (M.S.S. v Belgium and Greece), the CJEU admitted that the transfer would be incompatible with Article 4 CFR, and therefore, prohibited, if there were ‘substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions (…) in the Member State responsible, resulting in inhuman or degrading treatment’ of the individuals concerned (para 86). This judgment famously made clear that although there is a presumption that EU Member States respect the fundamental rights of asylum seekers, this is not a conclusive presumption and it must allow for evidence to the contrary to be considered (as recently confirmed and expanded in the Jawo and Ibrahim judgments).
Under the Dublin II Regulation, however, the Court held in Abdullahi that, in the light of the ‘mutual confidence’ between Member States, this situation of a systemic malfunctioning in the responsible Member State was the only situation where an applicant could challenge a transfer. It was therefore impossible for individuals to rely on the provisions laying down the obligations of Member State administrations concerning the application of the allocation criteria and the implementation of the transfer procedures. This solution is highly problematic in the light of the classic conception of individual rights under Union law. First, because it denies that the obligations of the Member States under EU law, even when they are clear, precise and unconditional (or subject to conditions that are fulfilled), amount to rights for individuals. Second, Abdullahi also negates the importance of individual interests for triggering the legality review of Member State administrative action implementing EU (asylum) law, and therefore challenges the key role of individuals in this system of legality review.
This inconsistency was eventually mitigated by the entry into force of the Dublin III Regulation, Article 27 of which provides for a right to an effective remedy against decisions made on the basis of the regulation. Cases such as Ghezelbash, Mengesteab and Shiri have established that ‘dublinised’ individuals may rely on provisions of the Dublin Regulation, beyond those that expressly confer rights. These judgments bring the Dublin Regulation case law back in line with the basic idea that rights can be derived from EU law obligations imposed on Member States, and that individuals who have an interest in doing so (i.e., ‘transferrable’ asylum seekers) may claim those rights before domestic courts. This clarification is particularly welcome considering the Commission’s proposal for a ‘Dublin IV’ Regulation, Article 28(4) of which is meant to restrict the scope of the right to remedy, leaving out provisions that organize inter-State cooperation. As explained above, this ‘Abdullahi-type’ of restriction is inconsistent with the classic conception of individual rights under EU law. And in pointing out this contradiction, this illustrates the relevance of individual rights to the reflection over the ongoing and future evolution of EU migration law.