European Union
CJEU: AG Opinion on right to long-term residence for Ghanaian national who has temporary residence under Art 20 TFEU
On 17 March 2022, AG De La Tour gave his Opinion on the case of C-624/20. The case concerned a Ghanaian national who lived in the Netherlands with her son who possessed Dutch nationality. In September 2013 she was granted an EU residence permit as a family member of a Union citizen, and in February 2019 her application for an EU long-term residence permit was rejected. The applicant’s referring questions asked whether the residence enjoyed through being the parent of a Union citizen could be relied on as a sufficiently long period of residence to apply for long-term resident status. The case therefore analyses Article 20 TFEU and Article 3(2) of Directive 2003/109/EC to examine the scope of temporary residence.
AG De La Tour began his analysis by determining that the concept of “temporary residence” is a concept of EU law and therefore needs an autonomous and uniform interpretation. He then turned his attention to whether residency under Article 20 TFEU constitutes temporary residence as outlined in Article 3(2)(e) of the aforementioned Directive, thereby excluding the applicant from its scope to obtain long-term residence after a continuous residence period of five years. The AG referred to the examples of au pair and seasonal workers given in the directive which suggest that the residence is intended to be for a short duration from the outset and is not comparable with raising a child in a country. However, he noted that long-term residence status under the directive provides for the establishment of an autonomous right of residency and that the applicant’s derived right of residence was linked to her child’s dependency on her and was therefore not an autonomous right of residence. He elaborated that the lack of intention to grant autonomous rights to her must be viewed in light of the intention to settle in the long term which forms the basis of the directive.
The AG subsequently referred to the applicant’s arguments under the Union Citizen’s Directive (2004/38/EC) and noted that this directive does not apply as the applicant’s son has never exercised his right of free movement and has always resided in the Member State of which he is a national. Therefore, the derived right of residence under Article 20 TFEU is justified as long as the state of dependency persists and there is no need to extend this right if dependency continues. The AG continued that the objectives of protecting family life and integration of the family are secondary to the primary objective to promote the freedom of movement of Union citizens, which are not hampered with in the case of the applicant’s child as long as his dependency on his mother continues. The AG also noted that under Directive 2003/109, Member States may issue residence permits on more favourable terms and thus the Netherlands could have issued the applicant with a residence permit on the basis of Article 8 ECHR.
AG De La Tour nevertheless concluded that on account of the specific nature of the derived right of residence under Article 20 TFEU and the fact that such residence does not demonstrate an intention to settle in the long term and can therefore be defined as residence on temporary grounds, the status of long-term residence provided for in Article 4 of Directive 2003/109 cannot be granted on the basis of this derived right of residence. Thus, Article 3(2)(e) of the same directive is to be interpreted as meaning that the residence of a third-country national who enjoys a derived right of residence under Article 20 TFEU constitutes residence solely on temporary grounds.
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EUAA: Rapid Response by EU+ countries to address the needs of people fleeing Ukraine
On 17 March 2022, EUAA published its situational update No 12 on the response of EU+ countries to address the needs of people fleeing Ukraine. The update covers developments reported by national authorities, international organisations and civil society organisations between 10 to 16 March 2022. It focuses on the activation of the EU Temporary Protection Directive and response by European countries, registration procedures, crisis management mechanisms, reception and accommodation, information provision and the impact on the asylum procedure and children.
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EUAA: Quarterly Overview of Asylum Case Law, Issue No 1/2022
On 15 March 2022, EUAA published its quarterly overview of asylum case law. The overview includes decisions and judgments from a selection of national courts, CJEU, ECtHR and UN Treaty Bodies. It looks at topics such as the Dublin Regulation, assessment of applications, statelessness, reception, detention, content of protection and return.
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FRA: Key fundamental human rights concerns Bulletin 1- 2022
On 4 March 2022, the Fundamental Rights Agency of the EU published its Quarterly Migration Bulletin of key fundamental human rights concerns from the period between 1 October 2021 and 31 December 2021. The publication includes concerns, facts and statistics on issues such as the situation at EU borders, asylum procedures, reception, child protection, return and hate speech and violent crime.
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National Developments
Italy: Constitutional Court rules 5 to 15 year imprisonment for Congolese national as unconstitutional
On 8 February 2022, the Italian Constitutional Court declared Article 12 (3)(d) of the Consolidated Immigration Act (Legislative Decree No. 286 of 25 July 1998) unlawful in relation to the words “or using international transportation services or counterfeited or modified documents or in any case obtained illegally”. On 27 August 2019, the applicant, a Congolese national, arrived at the Bologna airport together with her minor daughter and granddaughter where she showed three passports which were later found to be false. The case concerns the applicant’s criminal liability, charged with the crime of promoting, directing or transporting aliens in the State’s territory enacted under Article 12 (1) aggravated under paragraph (3)(d), by the possession of false identification documents, resulting in a sentence ranging from five to fifteen years’ imprisonment and an added fine.
The Ordinary Court of Bologna raised questions regarding the constitutional legitimacy of Article 12 (3)(d) in reference to the principles of equality-reasonableness (Article 3 of the Constitution) and of proportionality of the criminal sanction (Articles 3 and 27(3) of the Constitution). According to the applicant, the penalty of five to fifteen years of imprisonment for the use of international transportation services or for the counterfeit, modification or otherwise illegally obtained documents would be contrary to the forementioned principles.
In its analysis, the Constitutional Court considered i) the historical development of the legal provision set out in Article 12 (3)(d) and ii) the international legal framework, i.e., the Palermo Protocol of 15 November 2000 and the Council of the European Union Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorized entry, transit and residence.
The Court first held that it does not seem reasonably possible to recognise the crime committed by means of the use of international transportation services as an aggravated act compared to the basic act described in paragraph (1) of Article 12, in that it does not represent a particularly insidious conduct. On the other hand, it is true that using a false document attributes a further offensive connotation to the conduct, but offences of document forgery are usually punished, under Italian law, by far lower penalties than those laid down for aggravated aiding and abetting, leading the Court to establish that the penalty of 5 to 15 years of imprisonment in the present case resulted in a manifest disproportion in the sanctioning.
In addition, the Court pointed out the difference between assisting with the illegal entry into the territory in favour of individual foreigners for altruistic purposes vis-à-vis the activity carried out for profit by organised criminal groups. In this regard, the Court held that addressing the use of international transportation services and of forged, modified or illegally obtained documents in the same way as other conducts consistent with the crime of smuggling of migrants, constituted a manifestly unreasonable legislative choice. On this basis, the Court decided that the use of international transportation services, or counterfeited or modified documents, or in any case illegally obtained, should instead be punished with the more limited penalty of imprisonment from one to five years provided for by the first paragraph of Article 12 of the Consolidated Law, and declared the constitutional unlawfulness of Article 12 (3)(d) in relation to those acts.
Based on an unofficial translation within the EWLU team.
ECRE, the AIRE Centre and the ICJ intervened in this case and would like to thank Ghent University Human Rights and Migration Law clinic students Roel Stynen, Laura Pastor Rodriguez and Clémentine Leroy for providing research support during the preparation of the intervention.
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Germany: Administrative Court of Hanover grants an urgent application against a Dublin return order to Lithuania due to concerns over the asylum procedure and reception conditions
On 23 February 2022, the Administrative Court of Hanover gave its decision in a case concerning a return to Lithuania under the Dublin III Regulation. The applicant entered Lithuania through Belarus and then continued to Germany where they applied for asylum. However, Germany deemed Lithuania the responsible state for the applicant’s asylum procedure and sent a take-back request to Lithuania and on its approval, a removal order to the applicant. The applicant subsequently applied to the Hanover Court for suspensive effect to take action against the removal to Lithuania.
The Court determined that from Article 13 of the Dublin III Regulation, which refers to the entry criteria, Lithuania was originally responsible for processing the asylum claim of the applicant. However, the Court referred to Article 3(2) of the Regulation and elaborated that there is evidence to suggest that Germany should have continued to examine which Member State was responsible and to designate a competent state other than Lithuania. In this analysis, the Court referred to the principle of mutual trust and set out that it must be seriously feared that an asylum applicant will be threatened with a considerable probability of inhuman or degrading treatment within the meaning of Article 3 ECHR and Article 4 of the Charter of Fundamental Rights of the European Union due to deficiencies in the asylum system of the responsible Member State. It also referred to the case of Jawo.
Furthermore, the Court found that there were serious indications that the asylum procedure and reception conditions in Lithuania showed signs of systemic weaknesses which could cause a risk of inhuman and degrading treatment. The Court referred to the increase in border crossings from Belarus in the summer of 2021 and Lithuania’s response of tightening borders and its asylum system. It furthermore noted the many safeguarding and reception concerns on the ground and derived that there is no evidence to suggest that asylum applicants who are returned under Dublin procedure will be accommodated and treated differently. The Court thereby held that there are open prospects of success for the action against the deportation order and that the applicant’s interest in suspension of the order outweighs the public interest in its enforcement.
Based on an unofficial translation from within the EWLU team.
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NGOs
European Network on Statelessness: Briefing on stateless people and people at risk of statelessness forcibly displaced from Ukraine
On 10 March 2022, the European Network on Statelessness published a briefing concerning stateless people and people at risk of statelessness forcibly displaced from Ukraine. The briefing provides information on numbers of stateless people in Ukraine and identifies groups at risk of statelessness. It also includes a list of questions to assist in the identification of stateless people or people at risk of statelessness. Finally, the briefing contains recommendations to the EU, States, NGOs and international agencies to ensure that stateless people as well as those at risk of statelessness from Ukraine can access protection.
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ECRE
AIDA: UK Country Report 2021
This week AIDA published its country report on the United Kingdom 2021, updating the previous report from 2020. The report outlines the main changes since the 2020 report and provides an overview of legislative and practical developments in asylum procedures, reception conditions, detention and content of international protection (such as status and residence and family reunification) in the United Kingdom. It also provides information regarding the UK’s response following the ongoing situation in Ukraine.
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ECRE: Updated information sheet on access to territory, international protection procedures and reception conditions for people fleeing the war in Ukraine in European countries
On 18 March 2022, ECRE published its third information sheet on measures taken by European countries in response to arrivals of people fleeing the war in Ukraine. The information sheet provides updated measures up to 18 March 2022 and country implementations of the EU Temporary Protection Directive where available. The document is not exhaustive and is subject to become outdated as the situation unfolds.
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