The Roles of ECJ and National Courts on Immigration Policy: expanding or retreating?

A post by Adeline Chen

Introduction

Immigration has been a long-standing and controversial issue on the top of the political agendas in immigration destination countries. High inflows of migrations and the unequal distribution of forced immigration among states had become one of the primary challenges facing nation-states today[1]. The public opinion towards immigration is in general opposition to the existing immigration level[2], while the receptivity increases with education and more cosmopolitan cultural values[3]. The public opinions pressured the EU Member States to lean to restrictive immigration policy, while they are at the same time constrained by rules posted by international instruments such as the European Court of Justice (ECJ) and the United Nations Refugee Agency.

To what extent does the ECJ influence the immigration policies at the national level? And has the power of ECJ expanded or shrunk in the area of immigration laws? This article will first analyse the role of ECJ in immigration policymaking, especially on the issue of granting free movement rights to both immigration and ‘Third Country National’(TCN). This article will then, on the domestic level, look at the impacts domestic courts have on immigration policymaking by analysing cases and statistics in the US and Europe.

1. EU immigration law on free movement rights

Many scholars criticized that the ECJ holds limited stakes on immigration policies. For instance, Luedtke indicated that the intergovernmentalism on immigration policy supported by the majority of Member States retained the ECJ’s jurisdiction on granting free movement rights and that the Court has no clear guiding principles on TCN policy to invoke in future cases[4]. However, evidence in recent decades showed that the ECJ’s jurisdiction on the development of the free movement rights had substantially expanded. The first milestone is the Metock case in 2008 on the decision of the right of Union citizens and their family members, who are nationals from non-member countries, to move and reside freely in the territory of a member state[5]. The case involves nationals who initially failed to apply for asylum and then married Union citizens and nationals whose application for the residence card was refused by the Minister of Justice due to his unqualified condition of prior lawful residence[6]. Based on the Article 5(2) in the Directive 2004/38 which provides the entry into the host Member State for family members of a Union citizen who do not have a residence card, the Court provided clarification that the Directive is capable of applying also to family members who were not already lawfully resident in another Member States[7]. Moreover, the ECJ concluded that the Directive must be interpreted as referring to the family members who accompany or join the Union citizens and it is unnecessary to distinguish whether the nationals of the non-member countries entered before or after the Union citizen and when and where their marriage took place[8]. The ECJ’s judgment in this case vindicated the free movement rights of the Union citizens and their family members.

The role of ECJ on granting free movement rights was further expanded in the Ruiz Zambrano case in 2011. The Court ruled that upon a TCN whose minor child or children are Union citizens and are dependent, the Member States are precluded from refusing to grant a right of residence in the Member State of residence and nationality of those children, or refusing to grant a work permit to that national in so far as such decisions deprive those children of ‘genuine enjoyment of the substance of the rights’ attaching to the status of European Union citizen[9]. This decision is another milestone for ECJ, while scholars like Shaw addressed that some Member States were hesitant to implement the new EU law[10], and countries like the UK tried to limit the ‘Ruiz Zambrano carer’ rights by only providing minimal residual protection under s17 of the Children’s Act to those families[11]. However, the decision in the Zambrano case provided firm ground support for non-member state nationals who seek residence permit to reunite with their families. Nevertheless, regulations on migration movement from family reunification various in different Member States, but the Court marked a profound progress on protecting residence and employment rights for both immigration and TCNs in order to support the children with EU citizenships and the development of those families as a whole.

2. Role of domestic courts in immigration ‘rights expansion’

The ruling of domestic courts in EU and the US show tendency of granting rights expansion for immigrants. According to Joppke[12] and Hollifield[13], liberal European and US constitution and judicial systems constrain the ability of states to pass and enforce strong immigration control laws. This argument is supported by cases and statistics. In Plyler v Doe, the Supreme Court invalidated a Texas statute which withheld from local school districts any state funds for the education of children who were not ‘legally admitted’ into the United States and which authorized local school districts to deny enrolment to such children[14]. The Court held that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of the state, and the ‘innocent children’ could not be held responsible for the lawbreaking of their parents[15]. Moreover, the undocumented status of these children does not establish a sufficient rational basis for denying them benefits that the State affords other residents[16]. Therefore, this case clearly shows that the US Supreme Court nullified the state statute on discriminating immigrants’ right and further expand the rights for immigrant children who reside within the jurisdiction of the state to achieve equal education.

Besides in the US, statistics show that national courts in the UK have a vital effect on overturning immigration application appeals. According to the Law Society, in 2018, almost 50% of UK immigration and asylum appeals were overturned by the Court[17]. This data supports that the domestic court has significant influence over vindicating the will of immigrants and asylum seekers, while at the same time reflects the existing problems within the UK Visa and Immigration system (UKVI). Joe Egan, the president of the Law Society, criticized that the error or delay in the dealing with applications indicate flaws in the current system and these failures undermine the rule of law[18]. The national court thus had a significant role in overturning the errors and injustice pressured on those immigrants and asylum seekers.

Conclusion

The majority of the public opposition towards the current immigration level push politicians to adopt restrictive immigration policies to avoid their countries being regarded as ‘soft touch’. However, the expanding role and effect of the ECJ in the European institutional level and the national courts in the domestic level constrained the Member States to pursue strong immigration control policy. Although some criticized that the EU law had restrictive characteristics, the profound development on immigration policy in recent decades is evidential. The ECJ and the national courts had performed actively in regard of immigration policies, as discussed in the ECJ judgments in the Metock case and the Zambrano case, and the domestic court on vindicating education rights and overturning immigration and asylum appeals. Immigration issues are long-standing and unpredictable, especially among the EU Member States where situation abroad is volatile while simultaneously face challenges on seeking cooperation among the Member States. Overall, the active involvements of the ECJ and domestic courts are critical in the process of regulating the outcomes of immigration policies.

References

[1] Thielemann, E., ‘The effectiveness of governments’ attempts to control government migration’ in C. Parsons and T. Smeeding (eds), Immigration Transform Europe. (CUP, Cambridge 2007).

[2] Simon, RJ. and Lynch, JP., A comparative assessment of public opinion toward immigrants and immigration policies. International Migration Review. Vol. 33(2), pp. 455–86; Saggar, S., ‘Immigration and the politics of public opinion’ in S Spencer (ed), The Politics of Migration. (Blackwell, Malden 2004) 178–94; Cornelius W., Tsuda T., Martin P., Hollifield J. (eds), Controlling Immigration: A Global Perspective (Stanford University Press, Stanford 2004).

[3] Fetzer J., Public Attitudes toward Immigration in the United States, France, and Germany (CUP, Cambridge/New 2000); Kessler A., ‘Immigration, economic insecurity, and the “ambivalent” American public’ (2001) <http://www.ccis- ucsd.org/PUBLICATIONS/wrkg41.PDF> accessed 5 December 2018; Citrin J. and Sides J., The discreet charm of the bourgeoisie: why the educated favor immigration (Presented at Annual Meeting American Political Science Association) Chicago 2004.

[4] Luedtke, A., ‘The European Union dimension: Supranational integration, free movement of persons, and immigration politics’ in C. Parsons and T. Smeeding (eds), Immigration Transform Europe. (CUP, Cambridge 2007) 428 – 429.

[5] Case C-127/08 Blaise Baheten Metock and Others v Minister for Justice [2008] ECR I-06241.

[6] Ibid.

[7] Ibid; Directive (EC) 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/92 art 5.

[8] Ibid (5).

[9] Case C-34/09 Gerardo Ruiz Zambrano v Office national de l'emploi (ECJ 8 March 2011).

[10] Jo Shaw, Between Law and Political Truth? Member State Preferences, EU Free Movement Rules and National Immigration Law (2015) Cambridge Yearbook of European Legal Studies 247, 263.

[11] The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012, SI 2012/2588; The Social Security (Habitual Residence) (Amendment) Regulations 2012, SI 2012/2587.

[12] Joppke, C. 2001. The Legal-domestic Sources of Immigrant Rights: The United States, Germany, and the European Union. Comparative Political Studies, Vol. 34, No. 4 (May 2001), pp. 339-366.

[13] Hollifield J., 2000. The politics of international migration: How can we “bring the state back in”? 129th Annual Meeting American Historical Association, pp. 137– 85.

[14] 457 U.S. 202 (1982).

[15] Ibid, 210-216.

[16] Ibid., 224-226.

[17] Law Society, ‘Failures in UK immigration and asylum undermine the rule of law’ < https://www.lawsociety.org.uk/news/press-releases/failures-in-uk-immigration-and-asylum-undermine-the-rule-of-law/> accessed 12 December 2018.

[18] Ibid.

Books and journals

Citrin J. and Sides J., The discreet charm of the bourgeoisie: why the educated favor immigration (Presented at Annual Meeting American Political Science Association) Chicago 2004.

Cornelius W., Tsuda T., Martin P., Hollifield J. (eds), Controlling Immigration: A Global Perspective (Stanford University Press, Stanford 2004).

Fetzer J., Public Attitudes toward Immigration in the United States, France, and Germany (CUP, Cambridge/New 2000).

Hollifield J., 2000. The politics of international migration: How can we “bring the state back in”? 129th Annual Meeting American Historical Association, pp. 137– 85.

Jo Shaw, Between Law and Political Truth? Member State Preferences, EU Free Movement Rules and National Immigration Law (2015) Cambridge Yearbook of European Legal Studies 247, 263.

Joppke, C. 2001. The Legal-domestic Sources of Immigrant Rights: The United States, Germany, and the European Union. Comparative Political Studies, Vol. 34, No. 4 (May 2001), pp. 339-366.

Kessler A., ‘Immigration, economic insecurity, and the “ambivalent” American public’ (2001) <http://www.ccis- ucsd.org/PUBLICATIONS/wrkg41.PDF> accessed 5 December 2018.

Luedtke, A., ‘The European Union dimension: Supranational integration, free movement of persons, and immigration politics’ in C. Parsons and T. Smeeding (eds), Immigration Transform Europe. (CUP, Cambridge 2007) 420.

Saggar, S., ‘Immigration and the politics of public opinion’ in S Spencer (ed), The Politics of Migration. (Blackwell, Malden 2004) 178–94.

Simon, RJ. and Lynch, JP., A comparative assessment of public opinion toward immigrants and immigration policies. International Migration Review. Vol. 33(2), pp. 455–86.

Thielemann, E., ‘The effectiveness of governments’ attempts to control government migration’ in C. Parsons and T. Smeeding (eds), Immigration Transform Europe. (CUP, Cambridge 2007).

Cases and legislations

The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012, SI 2012/2588; The Social Security (Habitual Residence) (Amendment) Regulations 2012, SI 2012/2587.

Case C-127/08 Blaise Baheten Metock and Others v Minister for Justice [2008] ECR I-06241.

Directive (EC) 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/92 art 5.

Case C-34/09 Gerardo Ruiz Zambrano v Office national de l'emploi (ECJ 8 March 2011).

Plyler v Doe [1982] 457 U.S. 202.