Advocate General Szpunar on Rendón Marín and CS

Strangely enough David Cameron and Theresa May are supporting the UK’s membership of the EU despite their condemnation of the CJEU for usurping the rightful place of Parliament. Masquerading as the “good guys”, they appear less opposed to EU law’s “legal colonisation” than some others in their party who equate remaining in the EU as an open invitation to Paris-style terror attacks in London; an argument built on the theory that EU law is evil law. Alfredo Rendón Marín and CS both have criminal records, they received nine and twelve months’ imprisonment respectively. But the big difference is that CS is Abu Hamza’s daughter-in-law, the bloodthirsty Egyptian cleric who lost both hands and an eye in Afghanistan only to return to the UK to preach hatred in “Londonistan”. Some sources claim Osama bin Laden used to mock and ridicule Hamza for his injuries, which he apparently sustained while handling explosives, because they showed that Allah did not love him. To preserve his honour as an Arab, Hamza needed to cast the impression that he sustained his injuries fighting on the battlefield rather than in some freak accident – indeed, during his US trial he expressed his wish for the former.

CS was convicted of smuggling a mobile phone SIM card, in breach of the rules, when the extremist preacher was jailed. She is said to have concealed the SIM in the watch pocket of her jeans. CS’s son is British and Advocate General Maciej Szpunar’s Opinion can be seen as a blow to the rule of law because it awards rights to “a bunch of terrorists”. Marín, a Columbian national, has two minor children who were born in Malaga. His son is a Spanish national and his daughter is a Polish national and both children have always lived in Spain. The Advocate General found that a non-EU national with sole care and control of a minor child who is an EU citizen may not be expelled from a Member State or be refused a residence permit purely because of having a criminal record.

Equally, no deportation measure may be adopted unless it is proportionate and based on imperative reasons relating to public security and on the personal conduct of the non-EU national. The conduct in question must constitute a genuine, present and sufficiently serious threat. Moreover, under the TFEU every person holding the nationality of a Member State is a citizen of the EU and has the right to move and reside freely within the territory of the Member States.

Background

The Tribunal Supremo (Supreme Court, Spain) and the Upper Tribunal (Immigration and Asylum Chamber, UK) referred questions to the CJEU in relation to the effect that a criminal record may have on the recognition of a right of residence under EU law. The CJEU invited members of the press to note that Case C-304/14 was introduced as an anonymised procedure by the UTIAC with a view to protecting the interests of CS’s child and Advocate General Szpunar’s opinion does not mention CS was convicted of smuggling a SIM to Abu Hamza. Her real identity only came into the public domain when Philip Davies MP, a Conservative, said to Parliament:

This is a very serious matter and is something that this country and this House should be aware of.

Advocate General Szpunar, a Pole who lambasted the UK for unilaterally suspending free movement in the past and was in part accused of chasing a semantic butterfly, had totally different ideas of course. From what he could decipher, it was a forgone conclusion that the children involved in the referred cases possessed the status of EU citizens and had the right to move and reside freely throughout EU territory. For him, the principle of proportionality as propounded by EU law could not necessarily be so easily guillotined at the whim of Member States such as the UK. Despite significant overlap between the issues, there were some differences between the cases and the questions referred.

In relation to Marín’s case, the Advocate General said that Article 21 TFEU and Directive 2004/38/EC must be interpreted as precluding national legislation which on the basis of a criminal record requires the automatic refusal of a residence permit to a third-country national parent of a minor dependent EU citizen child in circumstances where they are living together in a host Member State.

He also said that it is contrary to Article 20 TFEU and the CJEU’s jurisprudence when the consequence of such refusal causes EU citizen children dependent on and in the sole custody of a third country national parent to exit EU territory along with the parent.

As for CS, he said that it is contrary to Article 20 TFEU for a Member State to expel from the EU a third-country national parent like CS – who has sole care, control and custody of her child – when to do so would deprive the EU citizen child of the genuine enjoyment of the substance of his rights as an EU citizen.

Rendón Marín: Case C‑165/14

Marín’s case concerned the lawfulness of denying the right of residence – because of criminality – in circumstances such denial potentially entailed the removal of minor children from EU territory. Marín was sentenced to a term of nine months’ imprisonment but was given a provisional two-year suspension and is awaiting a decision to have the conviction to be removed from the record. He has sole care and custody of his children who are getting proper care and schooling.

The mother’s whereabouts are not known and he applied to Spain’s Directorate-General for Immigration for a temporary residence permit on grounds of exceptional circumstances. Under the Law on Aliens, his immigration application was rejected because of his criminal record. The National High Court (Audiencia Nacional) dismissed his appeal and he appealed to the Supreme Court. He mounted his appeal on the ground that the decision incorrectly interpreted the cases of Zhu and Chen (C‑200/02, EU:C:2004:639) and Ruiz Zambrano (C‑34/09, EU:C:2011:124) and infringed the Law on Foreigners.

The Supreme Court, or Tribunal Supremo, explained that because the mother’s whereabouts are unknown the refusal to grant Marín permission to reside in Spain would lead to his removal from Spain and the EU. He would have to take his EU-national children, one of whom is a Spanish national, and his removal would cause their departure from EU territory. But unlike the circumstances in Zhu and Chen and Zambrano, in Marín’s case a statutory prohibition on granting a residence permit existed by reason of his criminal record in Spain.

It was in light of the above that the Tribunal Supremo referred questions in connection to whether national law prohibiting the grant of a residence permit because of a criminal record, even where the prohibition produced the unavoidable consequence of depriving a minor dependent EU citizen child of his or her right to remain in EU territory, is consistent with the CJEU’s jurisprudence interpreting Article 20 TFEU in which Marín placed reliance.

Interestingly, Marín was not the type of person to take no for an answer and subsequent to the reference he made two further applications for a temporary residence permit on grounds of exceptional circumstances and the second application was granted on 18 February 2015 on the basis of family ties as expressed in Article 124(3) of the new rules for the implementation of the Law on Foreigners.

CS: Case C‑304/14

As seen above, these proceedings turned on the expulsion of the parent – owing to her criminal convictions – entailing the constructive removal of the child. Though the Advocate General did not mention the controversial facts of CS’s case, he explained that she is Moroccan, married a British citizen in Morocco in 2002 and the next year she entered the UK as a spouse and was granted indefinite leave to remain in October 2005. She divorced her husband in 2007 but later reconciled and remarried in 2010 and 2011 she had a son who is a British citizen and is in her sole custody and care. Subsequent to her conviction for SIM smuggling in March 2012 which led to a 12 month sentence being imposed on her, in August 2012 she was given notice as regards her liability to deportation and she applied for asylum. She was released in November 2012 and her asylum application was refused in January 2013 and she was to be deported pursuant to section 32(5) of the UK Borders Act 2007. However, the First-tier Tribunal allowed her appeal because her deportation would lead to a breach of the Refugee Convention, Articles 3 and 8 ECHR and even the EU Treaties.

The First-tier judge found that an EU citizen “simply cannot be constructively expelled from the territory of the European Union in any circumstances whatsoever”; no derogation from the requirement was possible and deporting CS was not in accordance with the law because it violated the child’s rights under Article 20 TFEU. Permission to appeal was granted to the home office and in the Upper Tribunal the government submitted that EU law did not preclude CS’s deportation from the UK to Morocco even if her deportation would deprive her EU citizen child of the genuine enjoyment of the substance of his rights attaching to his status as a Union citizen.

AG Szpunar: EU:C:2016:75

Touching upon the CJEU’s case law, the Advocate General explained that along with Zhu and Chen and Zambrano the case of Rottmann (C‑135/08, EU:C:2010:104) – collectively representing “three developments” of crucial importance – was key to unlocking the answers to the questions posed. In examining the trio of cases, he remained adamant that state measures must not deprive the status of the Union citizen of its effet utile but equally pointed out at para 113 that “that does not mean, of course, that the Member States no longer have competence in the sphere of nationality!”

Since Marín was granted a temporary residence permit on 18 February 2015, an issue arose as regards the CJEU’s jurisdiction in the case but it was said that the CJEU was not in a position to establish conclusively, solely on the basis of the available information, that the Tribunal Supremo would discontinue the proceedings before it. In line with Zabala Erasun and Others (C‑422/93 to C‑424/93, EU:C:1995:183), Djabali (C‑314/96, EU:C:1998:104) and García Blanco (C‑225/02, EU:C:2005:34), the Advocate General felt that it was appropriate to ask the Tribunal Supremo whether it still requires a preliminary ruling and whether there is any reason for the CJEU to return an answer to enable the national court to give judgment. He emphasised at para 51 that a reference for a preliminary ruling could only be justified where it is necessary for the effective resolution of a dispute and said it was not the CJEU’s job to give advisory opinions on general or hypothetical questions.

Marín’s Spanish and Polish children and CS’s British child had not crossed any border and Directive 2004/38, or the Citizens’ Directive, applies to citizens of the EU and their family members who move to or reside in a Member State other than that of which they are nationals. The Advocate General stressed that the directive applied to the circumstances of Marín and his Polish daughter but not to the circumstances of him and his Spanish son or those of CS and her British son.

Since neither Marín’s children, Spanish and Polish nationals, nor CS’s child, a British national, had crossed any border, the directive applied only to the extent that it allowed Marín to reside in the host Member State (Spain) with his Polish daughter (a child national of another Member State) of whom he has care and control. Because of his daughter, national law automatically making the grant of a residence permit conditional upon having no criminal record in Spain or elsewhere was incapable of limiting his right of residence. This was so because a national measure of this nature was out of kilter with the principle of proportionality, as expressed in paragraph 1 of Article 52 of the Charter of Fundamental Rights and Article 27(2) of the Citizens’ Directive, making it impossible to establish whether the personal conduct of the individual concerned represents any current danger to public order or public security.

Cases such as Orfanopoulos and Oliveri (C‑482/01 and C‑493/01, EU:C:2004:262), Tsakouridis (C‑145/09, EU:C:2010:708) and P.I. (C‑348/09, EU:C:2012:300) made it clear that in principle, a national of a Member State or a member of his family may not be expelled solely on the grounds of a past criminal conviction. The Advocate General said EU law does not permit national legislation to provide that a non-EU parent of a minor EU citizen, residing together in the host state with care and control of the minor EU citizen, is automatically to be refused a residence permit solely because he has a criminal record. EU citizens such as the children in the case cannot be deprived of the right to move and reside freely throughout EU territory and it would be wrong to expect them to leave the EU.

Flagging up historic cases such as van Duyn (41/74, EU:C:1974:133), Bonsignore (67/74, EU:C:1975:34), Rutili (36/75, EU:C:1975:137), Bouchereau (30/77, EU:C:1977:172) and Calfa (C‑348/96, EU:C:1999:6), the Advocate General explained:

95. It is settled case law that any limitation of the right of free movement and residence constitutes a derogation from the fundamental principle of freedom of movement for persons, which must be interpreted strictly and the scope of which may not be determined unilaterally by the Member States.

Thus any limitation of free movement falls within the scope of EU law, which does not permit national measures to deprive EU citizens of the genuine enjoyment of the substance of the rights conferred by the Treaty. In the instant cases expulsion of the sole carer parents would cause their EU citizen children to depart with them, an occurrence amounting to the frustration of the actual enjoyment of the substance of the rights granted to them by EU citizenship. So as to protect the interests of the children such parents derived a right of residence flowing from the TFEU in relation to which, bearing in mind that Rendón Marín and CS were third country national family members of EU citizens, at para 141 the Advocate General applied by analogy the above case-law on removal involving nationals of a Member State convicted of criminal offences.

Within the meaning of that case law, the concepts of public order and public security must be interpreted strictly in the context of limitations of the right of residence. He found it unacceptable at para 154 that limitations of the right of residence right on public policy or public security grounds should differ depending on whether the right flows from the Treaty or from the directive. Overall it is contrary to the TFEU for national legislation to require the automatic refusal of a residence permit to a third-country national parent with sole care and custody of a minor EU citizen, on the grounds of the parent’s criminal record, in circumstances where such a refusal causes the child to leave the territory of the EU.

Zhu and Chen involved an EU citizen child who had never left the UK and would not be able to exercise the rights she enjoyed as an EU citizen fully and effectively without the presence and assistance of her parents. By contrast, Dr Janko Rottman acquired German citizenship by naturalisation, the retraction of which definitively caused the loss of his EU citizenship because under the Austrian Staatsbürgerschaftsgesetz, BGBl. 311/1985 he would not automatically retroactively recover his original Austrian nationality. In Rottmann, the CJEU considered acquisition and loss of nationality to be affairs of domestic competence but also said that in situations covered by EU law the national rules must comply with the principle of proportionality in withdrawing nationality. Particularly at para 45 the CJEU held that “the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law.” It however accepted that the national court should decide whether the withdrawal decision was proportionate, in the light of EU law, as to the consequences it produced.

In Rottmann the CJEU found that the status of Union citizenship conferred by Article 20 TFEU was so fundamental a right that a scenario entailing its loss fell the within the ambit of EU law by reason of its nature and its consequences. In Zambrano it said that EU law precludes measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by the Treaty. It was clear to the Advocate General that the rationale in Rottmann was in lockstep with the approach in Zambrano because depriving citizens of the genuine enjoyment of the substance of the rights conferred by their status as EU citizens was consonant with the nature and consequences of the loss of the status of citizen and at para 114 he remarked “[i]ndeed, the former concept fits perfectly with the latter.” He explained further at para 126 that the resemblance in the two scenarios “is clearly not a mere coincidence” and that para 42 of Zambrano definitely has its foundations in para 42 of Rottmann with the upshot that “the two concepts are … similar in their implications.”

Arguably, the language of “the substance of the rights” in Zambrano chimed with the idea of “the essence of rights” in Article 52(1) of the CFR. On the other hand, it was also arguable that the two expressions did not interlock and the substance of the rights did not correspond to the essence of rights. But that being so, the underlying principle remained that restrictions on EU rights are possible only if they are provided for under the law, observe the principle of proportionality, are necessary, and genuinely meet objectives of general interest recognised by the EU or the necessity of protecting the rights and freedoms of others.

Against that, it was important to gauge how far it was possible to go in limiting the essence of the rights arising from the status of EU citizen, i.e. a “limit to limits” or “an absolute, insuperable limit”, because a failure to comply with the essence of the rights granted to EU citizens render the rights “unrecognisable as such” with the result that using the term “limitation” becomes redundant because of their “abolition”.

The Advocate General cleverly noted that the CJEU’s proportionality analysis in Rottmann and Zambrano was distinguishable because in the latter case Gerardo Ruiz Zambrano was not seen as a threat to the public interest, public policy or public security and these criteria were not in play since the Belgian Government did not invoke them. However, in Rottmann the justification for the withdrawal of Dr Rottman’s German nationality arose out of him having practised deception/fraud and corresponded to a reason relating to the public interest or public policy or public security and these criteria remained a live issue in the case. Yet an absence of a proportionality analysis of the national measure in Zambrano did not mean that such an analysis was inappropriate altogether in other circumstances.

The UK argued that criminality was capable of causing a case to fall outside the scope of the Zambrano principle. The Advocate General found that a party’s criminal record alone was incapable of calling into question the right of residence derived by that party from the rule regarding “denial of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union” of his/her children. As regards public policy or public security, relied upon by the UK to justify CS’s deportation decision because her crime undermined its social values, he said that although the practice of expulsion is generally at odds with EU law it may nevertheless be adopted in exceptional circumstances on the condition that it respects the principle of proportionality and is based on the conduct of the person concerned and on imperative reasons relating to public security. The conduct in question must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and the national court must decide whether that is the position in the case under consideration.

The risk of reoffending is crucial in evaluating a threat of this nature and the Advocate General felt that we are enlightened by para 29 of Bouchereau where it was held that the threat “implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.” Article 7 CFR and Article 8 ECHR were important in the equation and so pursuant to the rationale in Tsakouridis at para 53 (and inter alia Maslov v Austria [GC], no. 1638/03, [2008] ECHR 546 at para 61 et seq) where an EU citizen had spent the majority of the entirety of his/her childhood and youth in the host Member State very good reasons would have to be put forward to justify the expulsion measure. Indeed, regard needed to be given to the nature and seriousness of the offence, the duration of residence of the person concerned in the territory in question, his age, state of health, family and economic situation, his social and cultural integration into the Member State of residence and the extent of his links with his country of origin.

Analysis

In the arguably controversial case of Rottmann, it was held of that the applicability of EU law does not depend on the presence of a cross-border element. In the case of Pham [2015] UKSC 19 – see here and here – the UK Supreme Court remained unimpressed with the proposition that it was disproportionate to deprive a Vietnamese jihadist of EU citizenship by denying him his “right to rights”.

In Rottmann, Advocate General Maduro found that a case involving a foreign element/cross-border dimension would come within the scope of Community law. In Pham, Lord Carnwath observed that the CJEU concurred with Advocate General Maduro but unlike him did not overtly depend on any cross-border element. The CJEU did not expressly state that a decision in relation to the acquisition or loss of national citizenship is outside the scope of EU law and the Supreme Court found this problematical.

Of course in G1 (Sudan) [2013] QB 1008, Sir John Laws found EU citizenship to be “wholly parasitic” on citizenship of the member state(s). This was “surely problematic” and the court failed to see how the legislative machinery allocated “the grant or withdrawal of State citizenship to the competence of the Union or subject it to the jurisdiction of the Court of Justice.” He did not construe Rottmann as conferring a “panoply of black-letter EU law” into the process of G1’s case. Rather, he held that the effectiveness of G1’s remedies needed to be judged with reference to the standards of the common law.

For Sir John Laws, an additional point of competence under the EU Treaty intersected with the constitution, and identified its participants, because “[t]he conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State.” Surely, in the absence of a cross-border element, it was wrong to give the CJEU the jurisdiction to judge any procedural conditions governing, conferring, withholding or revoking citizenship without first knowing whether Parliament (under the European Communities Act 1972 or elsewhere) had relinquished its role to the CJEU to modify the UK’s laws.

On that score, reiterating the stance that due regard to EU law must be given by the Member States when exercising their powers in the sphere of nationality, Advocate General Maciej Szpunar did well to humour individual EU countries by saying that “that does not mean, of course, that the Member States no longer have competence in the sphere of nationality!” but because of the CJEU’s reasoning in Rottmann he also warned that it is not possible to deprive the status of EU citizen of its effet utile. Thus, State measures must not infringe the rights provided by EU citizenship and:

113. … In other words, it is precisely when they are exercising their powers that the Member States must take care to ensure that EU law is not deprived of its effectiveness.

Comment

The Advocate General’s findings have touched a raw nerve with commentators. For example, juxtaposing CS’s case with the row over Myrtle Cothill’s proposed removal, in his article Bordering on insanity Rod Liddle remonstrated in The Spectator: “we can’t get rid of jihadis, sex-gang leaders and drug lords – so we try to deport old ladies.” Liddle feels angry that only white people suffer under immigration law (at least that is how things appear to him). He argues that they need protection from the twin evils of human rights law and EU law, both of which shield atrocious and parasitical foreigners leeching off the fabulous generosity of the British taxpayer.

But bizarrely, Rod Liddle is totally silent on the west’s deep historic support for jihadism that led to people like Abdullah Azzam, Osama bin Laden and Abu Hamza going to fight a holy war in Afghanistan in the first place. Just the other day, speaking at The Pakistan Institute of International Affairs, acclaimed author and journalist Ahmed Rashid explained that the west has endorsed two rigged elections in Afghanistan. The author of five major books on the Taliban, militant Islam and extremism, Rashid argued that things have never been worse in Afghanistan and no end appears to be in sight to the bubbling militancy in that country.

But you won’t catch pretentious Rod Liddle saying anything about that. Overall, he is clearly wrong that all murderers, rapists, drug dealers and terrorists win their deportation battles on the basis of human rights and EU law because most people lose. Of course, in order to breathe in his bubble world, he must have also selectively erased from his memory the ugly fact that after their great ally Saudi Arabia established formal ties with the Taliban, the UK and US came perilously close to recognising the extremist group as Afghanistan’s legitimate and natural government – after all, minus the oil and the wealth there is very little setting the House of Saud and the Taliban apart.

I find it quite embarrassing that my passport defines me as a citizen of the “Islamic Republic” of Pakistan and do not support any form of Islamic government. Islamisation has destroyed Pakistan in uncountable ways, but despite their best efforts to murder democracy during the dictatorial Zia regime (1977-1988) the Saudis did not manage to convert Pakistan into a place where hands are chopped off for theft or heads cut off in public squares for adultery, blasphemy or drug smuggling. Interestingly, in narrating the story of his accident – which evidently occurred in Lahore – Abu Hamza amused and entertained those present at his US trial by explaining that people had even spread rumours that the Saudis had cut his hands off for stealing!

As we know only too well, by constantly pulling Zia’s strings and abolishing guaranteed constitutional rights (almost mirroring ECHR rights) the Saudis treacherously tried to convert Pakistan into a Sunni emirate and Pakistan will continue to pay a heavy societal cost for the intolerance produced by the “experiment”. From that angle, quid pro quo it is only appropriate for the UK to consider its impotence to deport CS and J1 as a fair price to pay for all the death and destruction it has caused. If anything, a little bit of “CIA blowback” should be an acceptable penalty for the UK to pay given the part it played in the atrocities carried out in the name of freedom, justice and democracy in Afghanistan, Iraq and elsewhere.

The UK’s dark side is not in doubt and reportage on Babar Ahmad’s ordeal – see Robert Verkaik’s highly controversial piece in The Observer – yet again shines a light on the incredibly brutal way in which the British treat their own citizens to please their American masters. For example, to ensure that Washington was happy, Ahmad was illegally hooded and fitted with blacked out goggles and earmuffs prior to being handed over to US authorities.

A skewed account Babar Ahmad’s predicament can be found in Andrew Gilligan’s commentary in The Telegraph which claims “this jihadist is still hoodwinking liberals”/“pulling the wool over the liberal media’s eyes”. Apparently, Ahmad was awarded £60,000 in damages because of being brutally choked by Metropolitan police officers who twisted his handcuffs to torture him while taunting and mocking him with the rebuke “where is your God now?” I only read about this in the papers but it seems to be pretty insane and sounds like the kind of thing one would expect from the late Jihadi John or the Taliban rather than one of the most professional police forces in the world.

Gilligan might have some kind of half-baked point about Robert Verkaik spinning Babar Ahmad’s story to make it attractive to lefty types and alienated British Muslims but in contrast his own article is deceptively written because it fails to mention that Abdullah Azzam, Osama bin Laden and indeed Abu Hamza were the CIA’s right-hand men. Such individuals were handpicked by the west to lead the fight against the Soviets. Conversely, Babar Ahmad was probably nothing more than a confused frontline pawn in the great game of jihad rather than the big mastermind “General” Gilligan makes him out to be. US Judge Janet Hall called him a “good person” who was “never interested in terrorism”. Some honesty from Liddle and Gilligan, and other angry white men like them, would be nice. After all, the jihad nonsense constantly on our screens has been created by America, Britain and Saudi Arabia – but poor Asian and African countries are paying a much higher price for it than anyone else.

Anyway, it is quite surprising that CS got busted for smuggling Abu Hamza a SIM card. No one seems to have believed her story that it was in her pocket by accident! Perhaps we are missing out on something but what would a man without hands have done with a SIM card? Maybe he was trying to establish a hotline to Allah to try to bargain for his salvation and try to be admitted to heaven …

About mkp

Advocate High Courts of Pakistan
This entry was posted in Afghan War, Article 3, Article 8, Asylum, CFR, Children, Citizens Directive, CJEU, Deportation, ECHR, Muslims, Pakistan, Politics, Proportionality, Public Interest, Settlement, Terrorism, UKBA 2007, UKSC and tagged , , , , , , , , , . Bookmark the permalink.

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