Monday, 25 July 2016

Domestic violence and free movement of EU citizens: a shameful CJEU ruling




Steve Peers

EU laws on the free movement of EU citizens don’t give non-EU citizens rights in their own name. Rather, non-EU citizens can only gain rights under those laws if they have a family link with an EU citizen. This creates an obvious problem in cases of domestic violence committed by an EU citizen against a non-EU citizen family member. If the non-EU family member breaks the family link in order to flee the violence, there could be a risk of expulsion. So the victims might stay with their abusers due to a fear of removal from the country, which might include separation from their children.

However, there are provisions of EU law that mitigate this risk. It has long been the position (since the CJEU judgment in Diatta) that non-EU citizens can remain in the same country as their EU citizen spouse following a separation. Their position only changes after divorce.

Upon divorce, the EU citizens’ Directive (which sets out most of the rules governing EU citizens who moved to another Member State) provides specific protection. As a general rule, they can remain if the marriage has lasted three years, including one year in the host State. They can also stay if they have custody of the children, or access to them in the host State. Finally, they can also stay if ‘this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage…was subsisting’. In any of these cases, they can later get permanent residence status.

The recent judgment in NA was the first time the Court of Justice has interpreted the specific rule on domestic violence cases. It follows last year’s judgment in Singh, where the Court first interpreted the general rule about divorce. Both cases raised the same underlying issue: what happens if the EU citizen leaves the host State before the divorce is finalised? Does that departure immediately end the non-EU citizen’s status under the citizens’ Directive, trumping the retention of their residence that would otherwise apply during their separation and (probably) their subsequent divorce from their spouse?  

According to the Court of Justice, it does. This reasoning was an unconvincing interpretation of the general rule in Singh, and it is a particularly unconvincing interpretation of the special rule on domestic violence victims, taking insufficient account of the social context of this rule. While the victim in NA was able to rely on other provisions of EU law, not all victims will be able to. The Court of Justice should therefore rethink its position if the case arises – particularly in light of the EU’s planned signature of the Istanbul Convention on violence against women.

The judgment

The case concerned the status of a Pakistani woman who moved to the UK with her German husband. (The judgment will no longer be relevant to the UK if the country leaves the EU without an agreement on the continued free movement of people. However, it will still be relevant to other Member States). Her husband worked in the UK, and the couple had two daughters, both of whom are German citizens. She left the household due to domestic violence, and her husband left the country shortly after that, before any divorce proceedings began. She subsequently sought permanent residence status in the UK.

Did she retain rights under the citizens’ Directive? As noted above, the Court said she did not. It simply followed Singh, ruling that rights for the non-EU family member ended the moment the EU citizen left the country, unless divorce proceedings had begun beforehand. It gave three reasons. First, the wording of the relevant clause referred only to divorce. Second, the context was the ‘exceptional’ case where a non-EU citizen retained a right to stay despite no longer being a ‘family member’ of an EU citizen living in the same Member State. Third, the Court referred to the ‘aims’ of the law. In its view, the EU legislature had declined to make provision for cases where the EU citizen had departed the Member State, and the original proposal referred to possible ‘blackmail accompanied by threats of divorce’, with ‘safeguards’ only ‘necessary…in the event of final divorce’, as the right of residence is ‘not at all affected’ by a ‘de facto separation’.  

So she had no rights under the citizens’ Directive. However, the Court then examined two other arguments for her stay. First, the Regulation on free movement of workers says that the children of EU workers are entitled to access education. The Court had previously ruled that this entailed a right for the children to stay even if the worker had left, along with a corollary right for the parent caring for them to stay as well. The UK court questioned whether this rule applied even if (as in this case) the children only started school after the worker had left the country; the Court of Justice confirmed prior case law that it did. It was sufficient that the children were resident at some point while one parent was working in that Member State.

Finally, the Court examined a two-fold argument for NA’s right to stay on the basis of the EU Treaties. The first leg of this argument invoked Ruiz Zambrano, the well-known 2011 CJEU judgment which said that non-EU family members of EU citizen children who had not moved within the EU could derive a right to stay based on their children’s rights as EU citizens not to be deprived of the benefits of their EU citizenship. But the Court said that Zambrano was irrelevant to NA, since it only applied as a default, where no EU legislation could protect the legal status of the person concerned.

The second leg invoked the general right of free movement of EU citizens set out in the Treaties. But the Court ruled that the Treaty right was subject to secondary legislation. Applying the citizens’ Directive, NA’s EU citizen children could stay if they had ‘sufficient resources’, which could be derived from a parent. There was then a corollary right for a parent to stay with them – reaffirming case law going back to the Court’s well-known Chen and Zhu judgment.

Comments

In this case, Ms NA got to stay in the country – but that wasn’t actually the issue. She was seeking rather the right to permanent residence, but at first sight she will not obtain that. That right applies to a family member who retains a right of residence under the citizens’ Directive following divorce (among other cases). But it’s not clear if it applies to those who are resident only as a corollary to their children under the Directive. And it certainly does not apply to those who are only resident on the basis of the Regulation on free movement of workers, rather than the Directive: the Court said as much in its Alarape judgment.

The bigger problem with this judgment is the scope it opens to Member States to remove the victims of domestic violence from their territory. Ms NA only got the right to stay on the basis of her care for the children, not as a victim of domestic violence. So a victim without children would not have such protection. Also, rather arbitrarily, a victim whose husband had been self-employed, rather than a worker, would not benefit from the free movement of workers Regulation (see the Czop judgment). Moreover, the Court skipped over the point that her second child had not yet been born at the time when her husband left the country. The judgment would not help those victims whose children had been abducted by the husband when he returned to his home State, or who did not have parental responsibility for the children.

The logic of the Court’s analysis is deeply flawed. First, it isn’t self-evident that the rule on divorce is trumped in the event of separation: the EU legislature simply didn’t explain which rule takes precedence in that case. Secondly, the numbers of non-EU citizens with the right to stay will still remain ‘exceptional’, even if it is extended to cover also the (hopefully) small numbers of cases where an EU citizen perpetrates domestic violence against a non-EU citizen and then leaves the country before divorce proceedings start.

Thirdly, the Court’s analysis of the aims of the EU legislation is clearly absurd. True, the right of residence is ‘not at all affected’ by a ‘de facto separation’ – as long as the EU citizen spouse remains in the country. If the EU citizen spouse leaves, according to the Court’s own interpretation, the right of residence isn’t just ‘affected’ – it instantly vanishes entirely. So in that case ‘safeguards’ would be ‘necessary’. Otherwise there could be ‘blackmail accompanied by threats’ of departure, rather than divorce. Did the EU legislature really intend to make that fine distinction: it’s terrible to threaten a non-EU spouse in one case, but perfectly acceptable in the other? Does the humanity of our response to domestic violence rest on that technicality?

This analysis is shared by the Advocate-General’s opinion, which notes that the loss of status ‘could be used as a means of exerting pressure…to wear the victim down psychologically and, in any event, to engender fear of the perpetrator’. The Court’s interpretation could also complicate criminal proceedings, and deprive the victim’s derived right of its effectiveness. Overall that interpretation is ‘manifestly contrary to the objective of legal protection pursued by’ the citizens’ Directive.

Two final points on the broader context. First, the Istanbul Convention on violence against women, which the Commission has proposed that the EU sign, provides for a right of residence in domestic violence cases (see Article 59). There’s no reference to any distinction based on whether the perpetrator has left the country or not. Neither is there any such reference in the explanatory memorandum to the Convention. And why the hell should there be? Who cares where the perpetrator is, in this context? The sole purpose of the Convention – like the relevant clause in the citizens’ Directive – is obviously to help the victim.

Secondly, let’s examine the law from the perspective of the actual victim in this case. She could have preserved her position by bringing divorce proceedings before her husband left the country. But she had just fled her home, five months pregnant with an eleven-month old child. She may well have faced problems relating to work, benefits or accommodation. And on top of all this, the Court of Justice gives the nod to the Home Office to question her immigration status.

With all due respect, this is one of the most shameful judgments in the Court’s long history. It should be revisited at the earliest opportunity, in particular if the EU has concluded the Istanbul Convention in the meantime.

Barnard & Peers: chapter 13
JHA4: chapter I:6

Photo image: Telegraph.co.uk

5 comments:

  1. Thank you for an interesting insight.

    Three remarks are in order, I feel.

    First of all, the CJEU is not a human rights court. If the EU's secondary legislation is based on the simple idea of derived rights for TCN's (third country nationals), all other ideas must logically be exceptional. Exceptions are interpreted restrictively, or at least not widely on purely ideological premises. Hence, it was rather logical for the CJEU to not create rights for TCN's in cases of domestic violence, if all of the basic conditions (EU national's continued stay in the Member State) for derivation would have been lost. Naturally, this legislative (not judicial) choice might create odd situations at the margins, and some exceptions are indeed deemed necessary by the EU legislator, but I see that the work to correct the law - if any such work is needed - is now for the EU legislator. And just maybe, one day the EU legislator will step out of the box and protect TCN's with no rights to family life. Until then, even the ECHR is powerless to help these victims.

    Secondly, and maybe more marginally, coming from procedural law background, I cannot but underline the idea of at least some sort of minimal level of responsibility for the victims as well (and especially everyone helping these people, may you be blessed). If no temporal or material limits would be placed on blaming one's spouse for domestic violence (in connection with a claim for permanent residence right, I suspect), one would easily risk TCN's circumventing the established system based on derived rights of stay and residence. The current time limit (spouse's continuing presence in the Member State at the time of the beginning of the divorce proceedings) is admittedly very tight, and expections might prove necessary on grounds of equity and effet utile. In all cases, however, one is better shielded by law if one act's promtly with one's accusations - an indefinite opportunity to blame and stay is out of question anyhow.

    I should like to ask: in an ideal world, what would be the correct relationship between blaming the EU national for domestic violence, a national court decision finding a case of domestic violence and a right to stay for a TCN? All conditions must exist for a TCN to have legal grounds to stay, I presume.

    And finally, and most importantly, EU law does not pre-empt the legal protection for the victims of domestic violence. It is rather so, that the Member States - signatories and ratifiers of the Istanbul Convention, as the case may be - have responsibilities and and opportunities to guarantee better protection than the EU ever does on their respective domestic levels. Conversely, the EU can and hopefully will proceed to protect rights of TCN's in cases which are more common to the practical life, developing its legal system as practice and living life enables it.

    The layered and mutually supportive nature of legal protection provided by the different legal systems in Europe too easily leads to misunderstandings, if one legal sphere is expected to cover all questions worthy of coverage. It is not, in my mind, intellectually honest to create false expectations of this type. For sure, looking for different legal norms for different legal problems from different legal systems creates more pressure for legal professionals. I suspect that simple people like you and me never will be entirely cleat about our rights with out conversing with lawyers. But that is, simply put, the reason why legal professionals are payed the way they are.

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    1. Thanks for your comments.

      I agree that in some cases the existence of domestic violence might be disputed, but that was not the case here. I think it would always have to be for national authorities and the courts to determine whether such arguments are well-founded or not.

      As to the legislative intention, that begs the question. As I argued, the way the Court of Justice uses the explanatory memorandum to the proposal for the Directive is absurd. All of the points which it makes as regards the position of victims apply equally whether an EU citizen has left the country or not. Also the legislature did not expressly regulate the relationship between the rules on departure and the rules on divorce.

      And again, I believe that allowing domestic violence victims to stay in such circumstances - given that in any event they can stay if the EU citizen remains the country concerned - would not take them outside the position of 'exceptional' cases, given that in many cases there are no allegations of domestic violence.

      Furthermore, the Court's analysis undercuts by analogy the position of those with custody of children (or with access to children) even if there is no domestic violence allegation - except in cases where the child's EU citizen parent has worked within the country concerned when the child was resident there.

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  2. Hi Steve, thanks for your analysis! I'm doing some reading on domestic violence in EU legislation and case law and there is not a lot of information available. I have access to the Barnard and Peers book, but am wondering what "JHA4: chapter I:6" refers to in case there is some more info out there. ThanksQ

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    1. It means chapter 6 of volume I of the fourth edition of my book, EU Justice and Home Affairs Law. I have been meaning to add a page explaining how to use the blog to update the book (published in March 2016, up to date to December 2015). I'll do that soon. That's the chapter on legal migration, including a discussion of the status of non-EU citizen family members of EU citizens, which this case addresses.

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    2. Thanks for the quick response, I have access to your book, so glad I checked! I'm finding there is a real lack of analysis available on both the Singh and NA judgments, which surprises me, because I think both judgements raise a lot of interesting questions on the rights of TCNs following divorce...especially in the light of domestic violence. As they are both relatively recent, perhaps it is just a matter of timing. Anyway, thank you for the speedy answer! All the best.

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