By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf
The opinion of AG Mengozzi in the case of X and X v. Belgium, so far only available in French, has created quite a stir throughout the European Union. In a nutshell, the AG found that, when third country nationals apply for a visa with limited territorial validity (‘LTV’) under Article 25 of the Visa Code with the aim of applying for international protection once they have arrived in a Member State’s territory, the Member State’s immigration authority should take the circumstances of the applicant into account and assess whether a refusal would lead to an infringement of the applicant’s rights as protected by the Charter of Fundamental Rights. Although the AG makes an effort to cover all the arguments brought up by the parties, this blogpost focuses mainly on the issues directly related to the margin of discretion left to the Member States by Article 25(1) of the Visa Code. Continue reading
By Niovi Vavoula
Directive 2008/115/EC on the returns of irregular migrants (or, less neutrally, ‘illegally staying third-country nationals’) has been the subject of fierce criticism and not without good reasons. In an attempt to make the legal framework clearer, the Court of Justice of the European Union (CJEU) has been called to interpret its provisions on numerous occasions (such as Kadzoev, El Dridi, and Achughbabian). In particular, with regard to Article 15 on the detention of irregular migrants prior to their removal the Court has so far explained how the period of detention should be calculated and when there is a ‘reasonable prospect of removal’ (Kadzoev); it has precluded the incarceration of irregular migrants during the return process on the sole ground that they remain on the territory of a Member State even though an order to leave exists (El Dridi), and it has attempted to strike a balance between the right to be heard and the efficiency of the administrative procedure to extend the period of detention (G & R).
In the past few months one has witnessed the re-emergence of the issue of pre-removal detention. The judgment in the case of Mr. Mahdi, released on the 5th June 2014 by the Third Chamber, is central in this regard and raises mixed feelings. On the one hand, the Court provides the national authorities with important guidelines with a view to ensuring –at least to a certain extent- the right of irregular migrants to effective remedies. On the other hand, it seems to lack inspiration when dealing with harder questions that require a constructive approach beyond the mere replication of the provisions of the Directive. Continue reading
In a grand chamber judgment on Tuesday (case C-571/10 Kamberaj), the Court dealt with some fun and intriguing aspects of EU law, which relate to the relationship between the ECHR, EU law and national law on social security matters.
Mr Kamberaj, an Albanian national with a residence permit for an indefinite period in Italy, was denied certain housing benefits because the funds for those benefits were exhausted. Mr Kambery was of the opinion that this resulted in discriminatory treatment between him, a third country national, and Union citizens since the funding of those housing benefits was split in two categories namely Union citizens and third country nationals and only the funds for the latter category were exhausted.
There are two interesting aspects of EU law in this case:
- Firstly, the relationship between the EU legal order and the national legal order with respect to the ECHR;
- and secondly, the interpretation of Directive 2003/109/EC on the status of third country nationals and its implications for national social security systems.