Zh. and O.: EU law and the Constitutionalisation of the Exercise of Migration Control

  1. Legal background: return decisions and voluntary departure

Article 6(1) of Directive 2008/115/EC (hereafter the Return Directive) obliges the Member States to issue a return decision against any third-country national illegally staying on their territory. As a rule, such a return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, according to Article 7(1) of the Return Directive. However, Article 7(4) lists three exceptions to the general rule of voluntary departure: Member States may refrain from granting such a period or shorten it to less than seven days, (1) if there is a risk of absconding; (2) if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent; or (3) if the person concerned poses a risk to public policy, public security or national security. In Zh. and O. the Court was called upon to clarify the meaning of the concept of a risk to public policy in Article 7(4). In its interpretation, the Court draws directly and without hesitation upon the way in which it has consistently interpreted that concept in its case law with regard to limitations on the free movement rights of EU citizens in the context of Article 27 of Directive 2004/38: such a risk “presupposes, in any event, the existence […] of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” (para 60).

 

  1. National context and preliminary questions: a broad interpretation of a risk to public order?

The Dutch Council of State had referred the cases of Zh. and O. for a preliminary ruling because it was not sure whether the application of Dutch policy in their cases was in accordance with Article 7(4) of the Return Directive. Zh. had been arrested in the Netherlands while in transit to Canada, and subsequently convicted for possessing a false travel document, while O. was detained on suspicion of domestic violence. They both had been issued a return decision without a period for voluntary departure, because according to Dutch policy, the fact that an illegally staying third-country national is suspected of or condemned for committing a criminal offence in itself warrants the conclusion that this person constitutes a risk for public policy. The Council of State asked the Court of Justice three questions. In the first place it wondered whether the interpretation of a risk to public policy as laid down in Dutch policy was in accordance with Article 7(4). Secondly, it wanted to know whether other factors, apart from a possible criminal conviction or suspicion, could play a role in establishing that someone posed a risk to public policy in the sense of Article 7(4). Thirdly, it asked whether these other factors should be taken into account when Member States choose between abstaining from granting a period for voluntary departure on the one hand, or merely shortening it on the other.

 

  1. The Court’s answers: the importance of an individual assessment and the principle of proportionality

With previous case law on the Return Directive (and for that matter the Luxembourg case law in general) in mind, the answers of the Court are not surprising – the Court has emphasised again and again that when Member States take decisions based on the Return Directive, they are obliged to make an individual assessment which respects the principle of proportionality and takes account of factors that go beyond the mere fact of illegal stay. According to the Court then, states may only shorten or refrain from granting a period for voluntary departure on the grounds of public policy if “the personal conduct of the third-country national concerned poses a genuine and present risk to public policy” (para 50). Note that the Court places the right to voluntary return firmly with a fundamental rights context, by designating an appeal to public policy in the context of Article 7(4) as a derogation “from an obligation designed to ensure that the fundamental rights of third-country nationals are respected when they are removed from the European Union” (para 48). As such, this derogation has to be interpreted strictly. When a Member State relies on the concept of a risk to public policy, the burden of proof for the existence of such a risk rests on the Member State. Consequently, a Member State may not rely on a mere criminal conviction or suspicion that a person has committed a crime, without taking account of the third country national’s personal conduct, in in order to rely on the exception provided for in Article 7(4).

 

The Court delves a little deeper into the concept of risk when answering the second question. It holds that the factors justifying the finding that there is a risk to public policy are not the same as those that may justify a finding that there is a risk of absconding, Secondly, it refers to its free movement case law in order to emphasise that the interests that need to be appraised in order to protect public policy are not necessarily the same as those which are taken into account in the context of a criminal conviction. It concludes, by citing yet another judgement dealing with free movement of EU citizens “that the concept of ‘risk to public policy’, as set out in Article 7(4), presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. As such, Member States are bound to take into account any factual or legal matter relating to the situation of the third-country national concerned which can clarify whether his personal conduct poses a threat to public order. These matters include the nature and seriousness of the offences of which he is suspected or for which he has been convicted, the time that has passed since, the reliability of a suspicion, and the fact that he was in the process of leaving the Member State concerned.

 

In answering the last question of the Council of State, the Court predictably stresses the principle of proportionality: it holds that the fact that someone poses a threat to public policy may never lead to an automatic refusal of a period for voluntary return. Member States must instead assess on a case-by-case basis whether such a decision is in accordance with the principle of proportionality, and whether it does not violate the fundamental rights of the third country national concerned. This assessment can be made together with the assessment whether someone poses a risk to public policy, but it is imperative that the third country national is be able to express his point of view on these matters.

 

  1. Implications of the judgement for national policies with regard to return

The judgment shows that Dutch policy with regard to the refusal of a period for voluntary departure on grounds of public order is in violation with EU law for two reasons. In the first place, it does not pay duly attention to the question whether there is a genuine, present and sufficiently serious threat. In the second place, by automatically refraining from granting a period for voluntary departure, it breaches the principle of proportionality and disregards any possible violation of the fundamental rights of the third country national. But in addition, the judgement also brings to light shortcomings in two other areas of decision making in Dutch immigration policy. These concern (1) the refusal of a period for voluntary return if there is a risk of absconding; and (2) the imposition of entry bans for more than five years on the grounds of public order.

To start with the risk of absconding: in line with Article 3(7) of the Return Directive, Dutch legislation has defined objective criteria, which may justify the finding that a risk of absconding exists. These criteria have been divided in heavy and light grounds. The difference between a heavy ground and a light one, lies in the fact that when the authorities advance a heavy ground to argue that a risk of absconding exist, they do not need to provide further justification in order to prove that this risk exists in the individual case. If at least two heavy grounds are applicable, the period for voluntary departure is be refused, unless the third country national can produce arguments against the conclusion that there is a risk of absconding, or advances other reasons why he should be provided with a period for voluntary return.[i] This factual reversal of the burden of proof in the case of heavy grounds seems problematic in view of the strict requirements that the Court sets to the invocation of Article 7(4) by Member States, especially seeing that Member States, when they refuse to grant a period for voluntary removal, derogate “from an obligation designed to ensure that the fundamental rights of third-country nationals are respected”. This is even more so if we take into account the content of some of these grounds: Dutch law defines illegal entry as a heavy ground, just as the fact that an illegally staying third country national has not reported to the authorities. If someone is deprived of a period for voluntary return because these grounds are applicable, it can be argued that the authorities have failed to make an individual assessment that goes beyond the fact of mere illegal stay. In addition, it is unclear how the authorities, by merely advancing two heavy grounds, have ensured how the principle of proportionality is fully respected, as well as the fundamental rights of the third country national.

 

Then a few brief remarks about the imposition of an entry ban for more than five years. Article 11(2) of the Return Directive limits the duration of entry bans to five years. According to the second paragraph of this provision, this period can be extended if the third country national poses a serious threat to public policy, public security and national security. From the judgment in Zh. and O. it can be inferred that Member States, if they want to impose entry bans of more than 5 years on public order grounds, will need to prove that the personal conduct of the third country national constitutes at least a genuine, actual and sufficiently serious treat to public order. Moreover, even if such a threat exists, they will have to pay attention to the principle of proportionality, and ensure that the fundamental rights of the third country national are fully respected. In line with this latter requirement, Dutch law requires that attention be paid to the proportionality of all entry bans. However, with regard to entry bans of more than five years, it does not apply the concept of a threat to public policy in line with EU law, seeing that it designates the following circumstances as a serious threat to public order: (1) a conviction for a violent or drug related crime; (2) a prison sentence for a crime that is punishable with a sentence of more than 6 years, or (3) the fact that Article 1F of the Refugee Convention has been invoked against the third country national. Consequently, according to the Council of State, the fact that the Minister makes a well-grounded argument that the third country national has been convicted for very serious crimes is sufficient for an appeal to a serious threat to public policy in the sense of Article 11(2).[ii]

 

Similarly, the Council of State infers from the mere fact Article 1F of the Refugee Convention has been invoked to exclude a third country national from refugee status, the existence of a serious threat for public policy in the sense of Article 11(2).[iii] The question whether the danger to public policy is actual and genuine is not dealt with separately – according to the Council of State the very seriousness of 1F-exclusion entails an actual and genuine threat. This interpretation is striking in light of the way in which the Court of Justice has consistently understood the concept of threat to public order in its free movement case law – and all the more so because it has ruled that in order to exclude someone from refugee status under EU law, the risk to the receiving Member State does not need to be actual. It has observed in this context that exclusion from refugee status should be understood as a punitive measure.[iv] Moreover, currently, several hundred Afghani nationals, who are excluded from refugee status merely because they have served in the Afghani secret service, remain in the Netherlands. They are issued a return decision and an entry ban, but are not removed because their return to Afghanistan would entail a risk of violating Article 3 ECHR. So far, only two them have been criminally prosecuted. The absence of repressive, or any other kind of genuine and effective measures undertaken with respect to these people raises the question as to how serious, genuine and actual their threat to Dutch public order really is.[v]

 

  1. Comments: Towards the ‘constitutionalisation’ of the exercise of migration control?

The judgment in Zh. and O. is significant because it shows that increasing regulation of human mobility through EU law inevitably results in the ‘constitutionalisation’ of the exercise of migration control. Such ‘constitutionalisation’ occurs because EU law requires that whenever coercion is used in order to exercise the state’s right to exclude, such coercion be justified on a case-by-case basis, in which the principle of proportionality is fully respected. This is so even when these laws, as the Return Directive does, operate from an assumption of the legitimacy of the right to exclude as such. In this context it is telling that the Council of State held, in the judgment where it decided to refer the cases of Zh. and O. to the Court of Justice, that the concept of public order in the sense of Article 7(4) of the Return Directive could presumably benefit from a broader interpretation than the same concept in Directive 2004/38. It provided for this possibility because the Directives served dissimilar aims (the latter in fact granting rights of residence), and because withholding a period for voluntary return constituted the least coercive measure in the system of return provided by the Return Directive.[vi]

The Court does not explicitly address these arguments, but by placing the choice between voluntary and forced return firmly within a fundamental rights context, it shows a better understanding of the actualities of state power than the national judge did. Over time, the requirement that the exercise of concrete instances of state power, whatever the context of its exercise, is subject to usual constitutional procedures and norms, will impact significantly on Member States immigration enforcement policies, which have so far been to a large extent been exempt from these procedures and norms.

 


 

[i] Council of State 27 February 2014, 201303624/1/V3.
[ii] Council of State, 4 March 2014, 201305772/1/V3; and Council of State 15 June 2012, 201201202/1/V4.
[iii] Council of State 9 March 2015, 201400601/1/V2.
[iv] Cases C-57/09 and C-101/9, B. and D.
[v] Cases C-115/81 and C-116/81, Adoui and Cornuaille. Note also that the serving of a return decision and an entry ban to these people may also conflict with a common approach to illegally staying third country nationals in general, and with some of the provisions of the Return Directive in particular.
[vi] Council of State 23 October 2013, 201112799/1/V3 and 201202062/1/V3.

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