Tuesday, 4 October 2016

When can EU citizens be expelled from the UK after Brexit? The Human Rights Dimension



Matthew White, Ph.D candidate, Sheffield Hallam University


Following the EU referendums result to leave, David Cameron announced his resignation without invoking Article 50 of the Treaty of European Union. Already highlighted by Professor Steve Peers that the biggest issue in human terms, is what happens to EU citizens in the UK, and UK citizens in the EU. Peers advocated for an EU/UK withdrawal treaty that would contain a specific clause which would be legally binding, that defined the exact scope of the rule, which could also be supplemented by further measures, and must be fully applied in national law.

Prime Minister, Theresa May, according to the Guardian, had previously stated that ‘the rights of EU migrants to remain in the UK will be in play in the talks’ which Patrick Wintour interpreted as ‘without a deal, tens of thousands of Europeans could be thrown out of the UK.’ May’s position on the matter has not shifted, and even gained more weight when Phillip Hammond, according to the Spectator on the Today programme uttered:

Well look, I think we need to have a comprehensive negotiation with our EU partners, including around freedom to move, freedom to work, freedom to study and freedom to settle. And I hope we will be able to get to a position where are able to say to those EU nationals who live in the UK, and to those Brits who live in EU countries: everything’s fine, you can stay as you were. But we cant assume that. We’ve got to negotiate that with our former EU partners…. It would be absurd to make a unilateral commitment about EU nationals living in the UK without at the very least getting a similar commitment from the EU about British nationals living in the EU.

The concerns about this possibility have been exacerbated by today's suggestions from the Prime Minister that EU doctors will be expelled in future. It is accepted that this would be a worst case scenario, but if such a drastic measure of deportation of EU citizens en masse were to occur, what would be the legal consequences of such expulsion?

Article 8:

Assuming that the UK does withdraw from the EU and (as recently announced) repeal the European Communities Act 1972 (ECA 72) and the rights and obligations that come with it, EU citizens would more likely than not have to rely on the European Convention on Human Rights (ECHR). PM May had previously insisted that the UK should withdraw from the ECHR but has since retracted, and the new Home Secretary, Liz Truss seeks to replace the Human Rights Act 1998 (HRA 98) with a British Bill of Rights. This has been regarded by Conor Gearty as a bad idea and in any event would not affect the right of petition to Strasbourg, although it would make it more difficult to enforce ECHR rights in UK courts.

In relation to the context of this post, the principal right in question is Article 8, which stipulates that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

An EU citizen would first have to establish that Article 8, i.e. their private, family life, home etc was (or would be) engaged by the interference of (pending) deportation/removal. If this is established, it is then for the state to justify why this is legal, necessary and proportionate on the basis of national security public safety etc. In Chapman v UK (Application no. 27238/95) the European Court of Human Rights (ECtHR) considered the question of the removal of the applicants from their home, who had established it unlawfully. The ECtHR noted that whether the homes were established lawfully or unlawfully was highly relevant to the proportionality of the requirement to leave it. They continued, if the home was established lawfully ‘this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move’ (para 102). This would pose an obstacle to any plans to remove EU citizens who had lawfully established their home in the UK. The ECtHR also noted that less weight would be attached to those that had established their home unlawfully (para 102) meaning that it would still be relevant, but to a lesser degree.

In Moustaquim v. Belgium (Application no. 12313/86) the ECtHR maintained that separation of a Moroccan national from his family (parents and siblings, three of whom were born there (para 9) for more than five years by the Belgian authorities interfered with Article 8 (para 36). An important principle of this case despite the ECtHR finding a violation of Article 8 (para 46) (and despite the applicant committing 147 offences as a minor (para18)) was that the ECtHR recognised that states had ‘as a matter of well established international law and subject to their treaty obligations, the right to control the entry, residence and expulsion of aliens’ (para 43). Though this case does not specifically deal with EU citizens who have committed an offence, it does highlight that even committing one does not mean deportation is necessary.

Article 8 also places certain obligations on states to keep families together, which can be ‘positive’ (actively doing something) and ‘negative’ (refraining from doing something). In Gul v Switzerland (Application no. 23218/94), a Kurdish asylum seeker, his wife and child who resided in Switzerland wanted to be reunited with a child that stayed behind in Turkey. The ECtHR held that because there were no obstacles in preventing family life in Turkey, Switzerland had not failed to fulfil its obligations under Article 8 (para 42-43). This highlights the difficulties EU citizens would face if they had relatives in another country whom they wanted to be reunited with in the UK. 

The ECtHR, did however, distinguish this from Berrehab v Netherlands (Application no. 10730/84) which concerned a Moroccan national who wanted to keep in contact with his Dutch-born child after a divorce with his Dutch-born wife. The ECtHR established that by the very fact of the child’s birth, ‘family life’ had been established irrespective of whether the parents were living together (para 21). The ECtHR were also quick to dismiss claims that ties were broken between Mr. Berrehab and his daughter because he had visited her four times a week for several hours at a time (para 21). 

The ECtHR then considered whether the refusal of an independent residence permit was necessary in a democratic society, it was noted that Mr. Berrehab was not seeking admission into the Netherlands for the first time, but was a person who had already lawfully lived there for several years, who had a home and a job there, and against whom the Government did not claim to have any complaint. The ECtHR further noted that Mr. Berrehab already had real family ties there - he had married a Dutch woman, and a child had been born of the marriage (para 29). Regarding the relationship with the child, the ECtHR noted that Mr. Berrehab had been close with his daughter for several years, expulsion would threaten this which heightened the degree of seriousness because of the need of Mr. Berrehab daughter to keep in contact with him, given her young age (para 29). On these facts, the ECtHR found the Netherlands to be in violation of Article 8. This demonstrates that individual circumstances of each EU citizen would be key in determining whether or not they should be removed, this intensifies when children are involved, and more so if they are very young.

In Slivenko and others v Latvia - 48321/99 [2003] ECHR 498 a case regarding removal, the ECtHR highlighted that:

They were thus removed from the country where they had developed, uninterruptedly since birth, the network of personal, social and economic relations that make up the private life of every human being. Furthermore, as a result of the removal, the applicants lost the flat in which they had lived in Riga...In these circumstances, the Court cannot but find that the applicants' removal from Latvia constituted an interference with their “private life” and their “home” (para 96).

The ECtHR found a violation in this case (para 129), but the importance of this is that it would be more difficult for the UK to remove EU citizens who have made a life for themselves within the UK.

A further point about EU citizens that work in the UK would be what the ECtHR stated in Niemietz v Germany (Application no. 13710/88) ‘[r]espect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’ The ECtHR went further by adding that ‘"private life" should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world’ (para 29).

On a domestic level, in the case of UE (Nigeria) & Ors v Secretary of state for the Home department [2010] EWCA Civ 975 the Court of Appeal were tasked with determining the question of:

When the decision-maker is carrying out the balancing exercise required to determine whether removal is proportionate in an Article 8 case, is it relevant on any basis that the person in question is of value to the community in the United Kingdom, a value of which that community would be deprived if he were to be removed? (para 8).

Sir David Keane considered both ECtHR and domestic jurisprudence noting how both make references to the striking a fair balance between the individual and the general interests of the community (paras 13-17). In considering that courts should not be too restrictive in determining what is relevant to immigration controls, Sir David Keane noted that:

[A] a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise. The weight to be attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less. (para18).

When referring to Bakhtaur Singh v. Immigration Appeal Tribunal [1986] UKHL 11 where as Sir David Keane made note, the House of Lords unanimously held that when deportation was being considered under the Immigration Act 1971 and the Immigration Rules, both the Secretary of State and appellate bodies had to include amongst the relevant circumstances, the value to the community in the United Kingdom of the individual in question. This was to ensure a balance in "the public interest" against any compassionate circumstances of the case (para 21). Sir David Keane also referred to Lord Bridge (page 917 C-E) who noted a few examples of such value, ranging from an essential worker in a company engaged in a successful export business or a social worker upon whom a local community depended or a scientific research worker engaged on research of public importance (para 21). Sir David Keane admitted these cases were not Article 8 cases (and was ruled before the Human Rights Act 1998  came into force (para 21)) but that it would be surprising if the balancing exercise required by Article 8 was narrower than a statutory discretion. This was so, particularly in the context of the ‘public interest’ element of immigration control (para 22), therefore concluded that value to the community is relevant to the assessment to an extent of the public interest in removal (para 24 and 35) and the examples given by Lord Bridge were not exhaustive (para 36). Ultimately, the appeal was allowed and remitted back to the Upper Tribunal to consider the matters discussed.

This issue was further addressed in Zermani, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 1226. Here, the claimant despite overstaying and creating forged passports (and was sent to prison for said offence) relied on his contribution to the community to prevent his removal or at least proper consideration of his contribution. The claimant relied on letters affirming his value and character from groups including the local Council, Bangor University, the local Mosque, the Welsh Refugee Council, a refugee support group, and the Police (paras 4-14). HHJ Worster was referred to three cases decided by the Outer House in Scotland, dealing with this matter. The first, SM v SSHD [2012] CSOH 172 concerned a sound technician, who relied upon the accumulation of private life, despite unlawfully overstaying. The claimant’s application was supported by 14 letters of support describing his contribution (para 12). However, Lord Stewart noted although relevant, this would not have changed the decision made, referring to Lord Bridge’s examples with an emphasis the lawfulness of businesses and employment (para 17). The second and third cases, David Ndagijimana v SSHD [2014] CSOH 14 and MK v SSHD [2015] CSOH 13 respectively, both dealt with claimants who had overstayed, and in both the public interest in removal outweighed their contribution to the community. However, in Zermani, HHJ Worster was of the opinion that the supplementary decision did not fully take into account (paras 46-49) of the applicants ‘quite out of the ordinary’ (paras 35 and 49) contribution to the community and thus quashed the decision. These lines of cases demonstrate that if EU citizens can demonstrate their value to the community, this would add another hurdle to any prospects of removal.   

Even when removal is based on national security grounds, the ECtHR may find violations if the legal underpinning for such measures are insufficient. In Aristimuño Mendizabal v France (Application no. 51431/99) (in French) the applicant, a Spanish national complained of the temporary residence permits, whose duration varied from a few weeks to a year, over a 14 year period. The applicant highlighted the precarious situation they were put under, unable to obtain a stable job, long-term employment, poverty and significant social problems (para 60-61). The ECtHR highlighted that while the ECHR does not guarantee ‘the right of a person to enter or reside in a State of which he is not a citizen or not be expelled’ (para 65) or ‘guarantee to the person the right to a particular type of residence permit (permanent, temporary or otherwise) provided that the solution proposed by the authorities enables it to exercise unfettered rights to respect for [Article 8]’ (para 66). However, because the applicant was an EU citizen, the ECtHR decided that Article 8 should be ‘interpreted in the light of Community law and in particular the obligations of Member States regarding the entry and residence rights of EU citizens’ (para 69). The ECtHR felt that the precarious situation of the applicant amounted to an interference with Article 8 (para 72). After consider EU law (para 74-78). Ultimately concluding that ‘the period of over fourteen years taken by the French authorities to issue a residence permit to the applicant was not provided by law, the "law" in question is French or Community, and that there has been a violation of Article 8’ (para 79). This is an important consideration given that the UK may remain party to the EEA which would involve free movement of some form whilst also highlighting the issue of leaving EU citizens in a state of uncertainty.

Supplementing Article 8:

The above does not consider every aspect of Article 8 in the immigration context, but it is suggested that Article 4 of Protocol 4 (A4P4) of the ECHR can supplement Article 8. A4P4 stipulates that:

‘Collective expulsion of aliens is prohibited.’

First and foremost, however, it must be noted that the UK, has not, to date, ratified A4P4 nor is it incorporated into UK law through the Human Rights Act 1998. This means that it cannot be enforced through UK courts and neither does the ECtHR have the jurisdiction to consider based on it not being ratified.

However, in Demir and Baykara v. Turkey - 34503/97 [2008] ECHR 1345 the GC, significantly highlighted that:

The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.

In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies. (para 85-86).

This ‘continuous evolution in the norms and principles applied in international law’ can ben expressed by Judge Pinto De Albuquerque in his concurring opinion in Hirsi Jamaa that:

The prohibition of collective expulsion of aliens is foreseen in Article 4 of Protocol No. 4 to the European Convention on Human Rights, Article 19 (1) of the Charter of Fundamental Rights of the European Union, Article 12 (5) of the African Charter on Human and People’s Rights, Article 22 (9) of the American Convention on Human Rights, Article 26 (2) of the Arab Charter on Human Rights, Article 25 (4) of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms and Article 22 (1) of the International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families. (see also OHCHR Discussion paper: Expulsions of aliens in international human rights law, September 2006 (page 15-16)).

Therefore, these bodies of international law establish a prohibition of collective expulsion. The question then becomes, how does one enforce a Protocol that has not been ratified and cannot be used in domestic courts? In short, you do not. What one can do is apply it to a right that can be enforced whether by the ECtHR or domestic courts. Judge Ziemele in his concurring opinion in Lalmahomed v Netherlands - 26036/08 [2011] ECHR 338 discussed the passage from Demir and Baykara noted that:

However, if we were to follow the literal meaning of what the Grand Chamber said, it might suggest that in our case, even though the Netherlands has not ratified Protocol No. 7, since it does provide for a leave-to-appeal system of sorts the Chamber should have assessed whether the leave-to-appeal system as such complied with Article 6. After all, the applicant did complain that the domestic law governing this procedure was contrary to the Convention.

It is therefore suggest that on this basis, collective expulsion constitutes an inherent element (para 147-155) of the right to respect of private, family life and home. This is so because in the removal or prevention of entry context, the state has to take into account individual circumstances before making a decision, not respecting this opens them up to challenge. This could in turn supplement the Article 8 rights of those EU citizens who may be removed on an arbitrary basis.

It is therefore important to consider some cases concerning A4P4. In the case of Čonka v. Belgium (Application no. 51564/99) Slovakian nationals of Romany origin, described how they had fled from Slovakia because they had been subjected to racist assaults, with the police refusing to intervene. They had been arrested with a view to their expulsion after they had been summoned to complete their asylum requests. The applicants complained, about the circumstances of their arrest and expulsion to Slovakia. In interpreting A4P4, the ECtHR maintained that ‘collective expulsion’ is understood to be any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group (para 59). The ECtHR highlighted that the only reference to the personal circumstances of the applicants was that their stay in Belgium had exceeded three months (para 61). The ECtHR found a violation because Belgium, at no stage demonstrated that the personal circumstances of each of those concerned had been genuinely and individually taken into account.

The principle from this is that if PM Theresa May, creates a law that would expel EU migrants on the basis of residing within the UK for less than a specified period of time (or some other ill-defined basis), could open the UK up to challenges before the ECtHR. This could be used to supplement Article 8 (as will be discussed below).

Moreover, when it comes to EU migrants wishing to enter the UK, an ill-defined law on entering could also pose problems. In the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09) Somalian and Eritrean migrants travelling from Libya had been intercepted at sea by Italian authorities, then subsequently sent back to Libya. The first question before the GC was whether when Italian authorities sent the applicants back to Libya, they were within Italy’s jurisdiction for the purposes of Article 1 (securing the rights of everyone under a State’s jurisdiction). The GC felt that removal placed the applicants under the continuous and exclusive de jure and de facto control of the Italian authorities (para 81) and therefore within the ambit of Article 1 (para 82).

Prior to Hirsi Jamaa the GC noted that case law regarding A4P4 had mostly concerned removing individuals within national state territory (para 167). However, the GC took the unprecedented step of considering A4P4 applicability of expulsion outside national territory to ‘ascertain whether the transfer of the applicants to Libya constituted a “collective expulsion of aliens” within the meaning of’ A4P4 (para 169). The GC rejected the Italian government’s assertion (that A4P4 was not applicable because the applicants were not on Italian territory at the time of their transfer to Libya (para 172) because A4P4 made no reference to the notion of ‘territory’ (para 173). The GC went to some length justifying why this was the correct approach (which of course is also relevant to the ‘Syrian Refugee Crisis’) (paras 174-178), whilst also highlighting that States must establish their own immigration policies but ‘managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the Convention’ (para 179). Therefore, the GC found A4P4 applicable (para 182).

The GC reemphasised the importance of expulsion based on individual circumstance (para 183) but also highlighted that:

‘[T]he fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis.’ (para 184).

Under the circumstances of the specific case (para 185), the GC found a violation of A4P4 (para 186). This serves to demonstrate that even outside the physical territory of the UK, it must still uphold the Convention when it comes to migration.

Article 8 and collective expulsions: the procedural rights dimension

The case of Al-Nashif v Bulgaria (Application no. 50963/99) concerned the expulsion of a stateless Palestinian, Mr Al-Nashif on national security grounds. The applicants, Mr Al-Nashif and his children submitted they were entitled to the protection of Article 8 and that because of Mr Al-Nashif’s statelessness, was unable to develop strong links with any country except Bulgaria where they had established a home and family life (paras 102-103). The applicants argued that the expulsion of family member is a collective interference with their Article 8 rights, making reference to the fact that the family had never lived in Syria, and that deportation created economic and legal obstacles to the creation of a new family home in Jordan and Syria (para 103).  It was also argued that the laws in question were not in accordance with the law because they lacked clarity and foreseeability (para 104), and furthermore Mr Al-Nashif had never engaged in any unlawful or dangerous activity (para105).

The ECtHR accepted that family life existed (para 113) and that this was interfered with by the action of the Bulgarian authorities (para 114). On the issue of clarity and forseeability, the ECtHR reiterated past case law on the idea of laws being accessible and foreseeable to prevent unfettered exercise of powers by indicating the scope of discretion, with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (para 119). This is so even in the context of national security, measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information (para 123). The ECtHR made note that the decision to deport Mr Al-Nashif was taken without disclosing any reasons to the applicants, to their lawyer or to any independent body competent to examine the matter (para 126). The ECtHR also highlighted the legal regime was subject to challenge where the Sofia City Court and the Supreme Administrative Court in some cases refused to accept blank assertions by the executive in unreasoned decisions under the Aliens Act (para 127). The ECtHR concluded that the legal regime did not provide the necessary safeguards against arbitrariness and thus amounted to a violation of Article 8 (para 128).

This case, it is submitted necessarily rules out collective expulsion, as that was ultimately the consequences of the actions of the Bulgarian authorities. Furthermore, in line with A4P4, the decision to remove were based on objective reasonable justifications, which also were difficult to challenge. This leads into another Protocol, that the UK has not yet to date ratified, that being Protocol 7 Article 1(1) (P7A1(1)) which provides that:

An alien lawfully resident in the territory of a State shall not be expelled there from except in pursuance of a decision reached in accordance with law and shall be allowed:
a to submit reasons against his expulsion,
b to have his case reviewed, and
c to be represented for these purposes before the competent authority or a person or persons designated by that authority.

Although P7A1 can be bypassed on public order and national security grounds (P7A1(2)), Al-Nashif demonstrates the procedural requirements for Article 8 compliance. Further, given what Judge Ziemele discussed in his concurring opinion in Lalmahomed v Netherlands it may be that any such EU citizen wide removal system be compatible with Article 6 of the ECHR.

Conclusions:

In the unlikely event that a worst case scenario occurs, this post demonstrates that even if EU law rights and obligations stemming from the European Communities Act 1972 were to be curtailed, the ECHR can still be utilised to protect individuals. It is also important to highlight that, if other EU Member States created similar provisions in retaliation to the UK, the ECHR would protect UK citizens in the EU. Another layer of protection for UK citizens living in EU Member States may stem from EU immigration law concerning non-EU citizens, meaning that the Charter of Fundamental Rights (CFR) would apply and would therefore be covered by Article 7 (respect for private and family life) and Article 19 (prevention of collective expulsion). This post does not even begin to consider the other complex ECHR issues, education, discrimination, etc were such a measure to take force and it would only make removal more difficult.

Barnard & Peers: chapter 13, chapter 27
JHA4: chapter I:6
Photo credit: home.bt.com

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