Matthew Scott - JUFN 21 Svensk migrationsrätt 2 March EU Free Movement law i svensk kontext

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1 Matthew Scott - JUFN 21 Svensk migrationsrätt 2 March 2017 EU Free Movement law i svensk kontext

2 Overview PART I: EU Free Movement law in Swedish context 1. Constitutional basis of EU Free Movement law 2. Swedish incorporation of EU Free Movement law 3. Directive 2004/38/EC PART II: Schengen and internal border controls 1. The Schengen Aquis 2. Swedish incorporation of the Schengen Aquis 3. The Schengen Borders Code 4. Reintroduction of internal border controls under the Schengen Code 5. The lawfulness of Sweden s initial and subsequent introduction of internal border controls in

3 EU Free Movement law

4 1. Constitutional basis of EU Free Movement law Treaty on European Union & Treaty on the Functioning of the European Union

5 Treaty on European Union TITLE II PROVISIONS ON DEMOCRATIC PRINCIPLES Article 9 - In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

6 Treaty on the Functioning of the European Union PART TWO NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION Article 20 [citizenship] 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; Article 21 [free movement] 1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Freedom of movement is one of the four freedoms including freedom of movement of goods services, people and capital

7 2. Swedish incorporation of EU Free Movement law

8 Swedish incorporation of EU Free Movement law 3 a kap. UtL - Uppehållsrätt för EES-medborgare m.fl.

9 3. Directive 2004/38/EC DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

10 In short Provides for the free entry and residence of citizens of EU Member States and their (close) family members, subject to conditions Limits access to social assistance Provides for the circumstances in which EU citizens and their family members may be expelled from a host Member State

11 2004/38/EC The Citizens Directive Preamble Family member Article 2 Personal scope Article 3 Right of entry Article 5 Right of residence for up to three months Article 6 Right of residence for more than three months Article 7 Issue of residence cards Article 10 Retained rights of residence Article Right of permanent residence Article Exclusion on the basis of public policy, public security or public health Article 27 Protection from expulsion Article 28

12 Preamble (2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty. (5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality

13 Free movement of workers, or free movement of citizens? The rationale is a more integrated European community where EU citizenship provides a distinct identity. However, it is not available to all equally. The Directive limits the circumstances in which freedom of residence can be exercised see Article 7 Access to social assistance is also restricted

14 The role of the Court of Justice of the European Union Guardian of the treaties Provides uniform interpretation of EU law to be applied in Member States Preliminary reference procedure

15 Activity Applying Directive 2004/38 can the person stay? Scenario Details Scenario 1 Marie a French visitor, seeks to enter Sweden in January a) Does she need a visa b) Does she need to show proof of savings or other means of financial support for the duration of her stay? c) Does she need to tell the authorities how long she plans to stay in the country? d) Does she need to tell the authorities what she plans to do in the country? e) Does she need to provide the authorities with any documentation at all? f) Can the authorities refuse to allow her to enter the country?

16 Scenario 1 French visitor France is a Member State of the European Union. Marie is therefore a Union citizen as defined in Article 2(1) Marie has moved to a Member State (Sweden) other than that of which she is a national Provided Marie can produce a valid passport, she is entitled to enter Sweden [without having to apply for a visa] in accordance with Article 5 [subject to any public interest considerations see later scenario] She is entitled to remain in Sweden for a period of up to three months, without having to satisfy any additional requirements, in accordance with Article 6

17 Activity Applying Directive 2004/38 can the person stay? Scenario Details Scenario 2 Three months later, Marie finds employment and marries John, a citizen of Jamaica, who has no residence permit in Sweden a) How does finding employment affect Marie s status under EU law? b) How does the marriage to Marie affect John s status under EU law?

18 Scenario 2 marriage to Jamaican citizen residing without a residence permit As a French worker, Marie is entitled to continue to reside in Sweden for a period of more than three months, in accordance with Article 7 worker considered in a line of cases summarised by Advocate General Geelhoed in Trojani Case C-456/02 (para 33-46) As a citizen of Jamaica, John is not a national of a Member State As Marie s husband, John is a family member of a Union citizen, as defined at Article 2(2)(a) But is he accompanying or joining the Union citizen in the host Member State? Metock and Others (Area of Freedom, Security and Justice) [2008] EUECJ C-127/08 (25 July 2008)

19 Metock - Judgment 1. Directive 2004/38/EC precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive. 2. Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

20 Thoughts on Metock and EU free movement law in comparison with domestic law Clearly activist decision by the Court Highlights the privileged position of an EU citizen in another Member State, compared with EU citizens who have not moved consider McCarthy case Dual Irish/British citizen who had never moved Married to Jamaican man who was residing unlawfully No chance of getting legal residence under domestic UK law Could not rely on Treaty or 2004/38 Contrast with Zambrano/Derecei cases Host MS must grant residence to TCN parents of EU citizen child who has not moved, if effect of not doing so is that child must leave the EU and lose citizenship rights

21 Surinder Singh CASE C-370/90 A national of an EU Member State must enjoy the same family unity rights upon returning to his/her home Member State from a period in another host Member State as (s)he would if (s)he were in a host Member State. Judgment (based on earlier directive) Article 52 of the Treaty and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the pro- vision of services, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State.

22 Activity Applying Directive 2004/38 can the person stay? Scenario Details Scenario 3 In June 2013 Marie stops working following an accident at work. ALTERNATIVELY, she stops work because she is in the late stages of pregnancy. She is worried that she will no longer enjoy her right of residence under EU law. a) What does the Directive say about worker who cease employment? b) What do you think about the situation of someone who stops working because of pregnancy?

23 Scenario 3 Marie stops working As Marie has stopped working owing to an accident, she retains her status as a worker in accordance with Article 7(3)(a) In the case of pregnancy, the Directive is silent. However, the CJEU determined in Jessy Saint Prix (C-507/12) that a worker who ceases employment in the context of pregnancy may retain her status as a worker, depending on the circumstances. Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of worker, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child. Consequently, John retains his status as well

24 Activity Applying Directive 2004/38 can the person stay? Scenario Details Scenario 4a Marie leaves the UK in April What is the status of John, who remains?

25 Scenario 4a Marie leaves the UK John remains As John is a family member who is not a national of a Member State, and as he has not acquired a right of permanent residence, he does not enjoy a retention of his right of residence under Article 12 in the event that Marie departs from the country

26 Activity Applying Directive 2004/38 can the person stay? Scenario Details Scenario 4b Alternatively, Marie and John divorce in January 2016, after a speedy divorce initiated by Marie in August 2015.

27 Scenario 4b Marie and John divorce As John is not a national of an EU Member State, the question regarding his retained right of residence following his divorce from Marie is answered with reference to Article 13 (2). One of the conditions set out between 13(2)(a)-(d) must be satisfied in order for the right of residence to be retained. John and Marie were married in April 2012 and divorce proceedings were initiated in August The marriage has therefore lasted three years. As the entire duration of the marriage was in the UK, at least one year of their marriage was in the host Member State. Consequently, the requirements of Article 13(2)(a) are satisfied. Consequently, John retains his right of residence. He will be entitled to permanent residence in accordance with Article 18 after 5 years of lawful residence as the family member of an EU citizen, provided the requirements in the second paragraph of Article 13(2) are met

28 Activity Applying Directive 2004/38 can the person stay? Scenario Details Scenario 5 In February 2016, John is convicted for attending terrorism training overseas the authorities issue him with an expulsion decision after completion of his sentence

29 Scenario 5 John convicted for attending training in terrorism overseas The decision of the authorities to issue John with an expulsion decision must be evaluated with reference to Articles In accordance with Article 27(2), the decision must be proportionate and based exclusively on the personal conduct. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. In accordance with Article 28(1) the authorities shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. Further, very specific information would be required to determine whether expulsion of John would be proportionate in the circumstances, having particular regard to the considerations at Article 28(1). Careful scrutiny of the criminal case, evidence of any rehabilitation whilst in custody (to address question of current/future threat), plus information about his age, health etc would be required.

30 S c h e n g e n

31 The Schengen Acquis Provides for the absence of border control of persons crossing the internal borders between the Member States of the Union and lays down rules governing border control of persons crossing the external borders of the Member States of the Union. Schengen Agreement 1985 and subsequent Convention between Benelux countries, Germany and France Sweden joined in 1996 The acquis became part of EU law with the Treaty of Amsterdam The acquis refers to the 1985 Agreement The 1990 implementing Convention Accession agreements Decisions and declarations adopted by the Executive Committee

32 The Schengen Borders Code Provided for by Article 77(2)(b) TFEU Regulation 562/2006 Recodified by Regulation 2016/ /399 Provision 25 General framework for internal border control 26 Criteria 27 Procedure for foreseeable events 28 Cases requiring urgent action 29 Persistent serious deficiencies relating to external border control

33 Regulation 1053/2013 monitoring of Schengen Site visits by teams of representatives from the Commission and experts from MS Identify deficiencies in relation to Schengen acquis and make recommendations MS makes a plan

34 Principles from Reg. 2016/399 (22)The creation of an area in which the free movement of persons across internal borders is ensured is one of the main achievements of the Union Given the impact that such measures of last resort may have on all persons having the right to move within the area without internal border control, the conditions and procedures for reintroducing such measures should be provided for, in order to ensure that they are exceptional and that the principle of proportionality is respected. The scope and duration of any temporary reintroduction of such measures should be restricted to the bare minimum needed to respond to a serious threat to public policy or internal security. (23)As free movement of persons is affected by the temporary reintroduction of internal border control, any decision to reintroduce such control should be taken in accordance with commonly agreed criteria and should be duly notified to the Commission or be recommended by a Union institution. In any case, the reintroduction of internal border control should remain an exception and should only be effected as a measure of last resort, for a strictly limited scope and period of time, based on specific objective criteria and on an assessment of its necessity which should be monitored at Union level. Where a serious threat to public policy or internal security requires immediate action, a Member State should be able to reintroduce border control at its internal borders for a period not exceeding ten days. Any prolongation of that period needs to be monitored at Union level. (26) Migration and the crossing of external borders by a large number of third-country nationals should not, per se, be considered to be a threat to public policy or internal security. (27) In accordance with the case-law of the Court of Justice of the European Union, a derogation from the fundamental principle of free movement of persons must be interpreted strictly and the concept of public policy presupposes the existence of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. (30) The temporary reintroduction of border control at certain internal borders under a specific Unionlevel procedure could also be justified in the case of exceptional circumstances and as a measure of last resort where the overall functioning of the area without internal border control is put at risk as a result of persistent serious deficiencies relating to external border control identified in the context of a rigorous evaluation process in accordance with Articles 14 and 15 of Regulation (EU) No 1053/2013, where those circumstances would constitute a serious threat to public policy or internal security in that area or in parts thereof. ü Exceptional measure ü Proportionate ü Bare minimum ü Last resort ü Specific objective criteria ü Large scale migration not a threat per se ü Genuine, present and sufficiently serious threat ü Alternatively persistent, serious deficiencies relating to external border control

35 Art Main points 25 ü Serious threat to public policy or internal security ü may exceptionally reintroduce border control ü limited period of up to 30 days or for the foreseeable duration of the serious threat ü scope & duration shall not exceed what is strictly necessary to respond to the serious threat ü Last resort ü May be prolonged. Max 6 months, or if exceptional up to 2 years 26 ü MS shall assess the extent to which such a measure is likely to adequately remedy the threat to public policy or internal security ü assess the proportionality of the measure in relation to that threat 27 ü Notification of MS, Commission, Council and Parliament at least 4 weeks before reintroduction, unless not ü Commission or MS may issue an opinion, including re necessity/proportionalit 28 ü Provision for immediate reintroduction for up to 10 days ü Notification provisions similar to Art 27 ü Provision for prolongation, of 20 days at a time, amounting to no more than 2 M in total 29 ü overall functioning of the area without internal border control is put at risk ü as a result of persistent serious deficiencies relating to external border control ü insofar as those circumstances constitute a serious threat to public policy or internal security ü For period of six months, renewable max 3 times ü Last resort and where all other measures ineffective ü Council acts on recommendation from commission. Final decision with MS

36 Reintroduction of internal border controls under the Schengen Borders Code

37 Date Timeline Event 12 November 2015 Notification under Art 23 and 25 SBC 2006 of reintroduction of internal border controls until 21 November 2015 (Council document 14047/15) 20 November 2015 Prolongation under Art 23 and 25 (Council document 14383/15) to 11 December December 2015 Prolongation under Art 23 and December 2015 Prolongation under Art 23 and 25 7 January 2016 Prolongation under Art 23 and 25 8 February 2016 Prolongation under Art 23 and 24 8 March 2016 Prolongation under Art 23 and 24 8 April 2016 Prolongation under Art 23 and 24 4 May 2016 Prolongation under Art 25 and 27 8 June 2016 Prolongation under Art 29(2) SBC November 2016 Prolongation under Art 29(2) SBC Feb Lund 2017 University 10 / Faculty May of 2017 Law / Doctoral Prolongation Student Matthew Scott under / 02/03/2017 Art 29(2) SBC 2016

38 Overview Annual asylum application

39 Overview 2015 Monthly asylum applications

40 Impact 2016 Monthly asylum applications

41 1. First notification under Article 23 & 25 SBC 2006

42 2. First prolongation 20 November 2015

43 Lag (2015:1073) om särskilda åtgärder vid allvarlig fara för den allmänna ordningen eller den inre säkerheten i landet 2 Om det har uppkommit en allvarlig fara för den allmänna ordningen eller den inre säkerheten i landet får regeringen, i syfte att upprätthålla lag och ordning eller skydda nationell säkerhet, vidta sådana åtgärder som avses i 3 och 4.

44 Förordning (2015:1074) om vissa identitetskontroller vid allvarlig fara för den allmänna ordningen eller den inre säkerheten i landet Transportörers skyldighet 3 En transportör ska kontrollera att de passagerare som transportören med buss eller tåg transporterar till Sverige från Danmark innehar en giltig identitetshandling med fotografi. Kravet att inneha en giltig identitetshandling med fotografi gäller inte för personer under 18 år som reser i sällskap med förälder som kan uppvisa en giltig identitetshandling med fotografi. Kontroll av transportörens skyldighet 4 Polismyndigheten ska kontrollera att transportören har fullgjort sin skyldighet enligt 3. Tullverket och Kustbevakningen ska på begäran bistå Polismyndigheten vid en sådan kontroll.

45 Latest Council Recommendation of 7 February 2017

46 Your thoughts: Is Sweden s reintroduction of internal border controls since 2015 in accordance with the Schengen Borders Code? Factors suggesting compliance Factors suggesting breach

47 Key findings from European Parliament commissioned report (see reading list for citation) Inadequate proportionality assessment in reintroduction of internal border controls None of these notifications fulfils the simple criterion in Article 26 the justifications amount to no more than bare assertions without any evidence, explanation or other material that might substantiate the cliam None of the notifications address the impact on the free movement of persons within the Schengen area MS must provide serious and compelling reasons

***I ORIENTATION VOTE RESULT

***I ORIENTATION VOTE RESULT EUROPEAN PARLIAMT 2009-2014 Committee on Civil Liberties, Justice and Home Affairs 2011/0242(COD) 7.5.2012 ***I ORITATION VOTE RESULT on the proposal for a regulation of the European Parliament and of