non-EU Nationals Research Articles

The Convergence of the European Legal System in the Treatment of Third Country Nationals in Europe: The ECJ and ECtHR Jurisprudence

This article, based on a broader project, focuses on the interaction between the two European Courts (the Court of Justice of the European Union � ECJ and the European Court of Human Rights � ECtHR) and uses the specific area of expulsion/deportation of third country nationals (non-EU nationals) from European territory as a case study. The work examines the ECJ�s and ECtHR�s divergent approaches in this area of law, and it then provides some preliminary reflections on the potential of the EU Charter of Fundamental Rights and the EU�s accession to the European Convention of Human Rights (ECHR) to achieve a more harmonious and convergent human rights system in Europe. It finally argues that the post-Lisbon era has the potential to enhance the protection of fundamental rights within the continent.

The Convergence of the European Legal System in the Treatment of Third Country Nationals in Europe: The CJEU and ECtHR Jurisprudence

This paper, based on a broader project, focuses on the interaction between the two European Courts (the Court of Justice of the European Union – CJEU and the European Court of Human Rights – ECtHR) and uses the specific area of expulsion/deportation of third country nationals (non-EU nationals) from the European territory as a case study. The work examines the CJEU and ECtHR divergent approaches in this area of law and it then provides some preliminary reflections on the potentiality of the Charter of Fundamental Rights and the EU’s accession to the ECHR to achieve a more harmonious and convergent human rights system in Europe. It finally argues that the post-Lisbon era has the potential to enhance the protection of fundamental rights within the continent.

Third Country Nationals Versus EU Citizens: Discrimination Based on Nationality and the Equality Directives

The creation of an area of freedom, security and justice and the communitarisation of the immigration and asylum policy of the EU are important steps toward integration and fair treatment of Third Country Nationals (TCNs). And yet, EU law presents a number of loopholes in relation to the treatment of non-EU nationals who are subject to discrimination based on nationality and race. These two grounds of discrimination are closely related, and difficult to distinguish and yet important to the development of such a space. The paper discusses the non-discrimination principles on the grounds of nationality and race, respectively based on Art. 18 TFEU (ex Art. 12 EC, as amended) and on Art. 19 TFEU (ex Art. 13 EC, as amended) and their scope of application. It analyses some of the discrepancies in the treatment of TCNs as opposed to EU citizens emerging from the Racial Equality Directive (2000/43/EC) and the Framework Equality Directive (2000/78/EC) (hereafter Equality Directives). The Art., then, considers the approach used by Court of Justice of the European Union (ECJ) in a relatively recent case Centrum Voor Gelijkheid on racial discrimination and espouses the thesis that the limitations contained in both Directives, together with the current interpretation of Art. 18 TFEU (ex Art. 12 EC, as amended), have created a stratification of entitlements and consequently a hierarchy of people legally resident within the EU. The conclusive section reflects on the potentialities offered by the Charter of Fundamental Rights of the EU and its recent effect, as pronounced in the Kucukdeveci case, in providing a more extensive protection to TCNs.

The Treatment of Non-EU Nationals before Domestic Courts of Member States

There is some uncertainty in private international law at the present time as to the correct law to be applied to decide jurisdictional disputes involving nationals of non-EU Member States who come before the domestic courts of a Member State. Examining these issues from the perspective of the third State defendant, this papers first summarizes the current legal framework as it applies to cases with an international dimension beyond the EU, then analyses some decisions of national courts, particularly in the last year, to highlight the many remaining uncertainties facing a non-EU-domiciled defendant and finally considers the likely impact on third State parties of possible future EU legislation in this area and the compatibility of present and future legislation with generally accepted principles of private and public international law.

Forced marriage in the UK: Religious, cultural, economic or state violence?

Our paper is based on a qualitative empirical study of forced marriage in the UK and offers a multidimensional view which challenges four key points that are currently central in the forced marriage debate. First, the study explores the problematic of current UK and European Union policies on preventing forced marriage which focus on raising the age of sponsorship and marriage age for non-EU nationals migrating to the UK. Second, current conceptualizations of forced marriage focus on consent at the entry point into marriage. In contrast, survivors of forced marriage, and women’s organizations experienced in providing services to this group, both attach equal importance to exiting (forced) marriages. Third, within the forced marriage debate, South Asian and Muslim communities are perceived as being largely responsible for forced marriages, whilst our research demonstrates that the range of communities in which forced marriage occurs is much wider. Fourth, forced marriage is often seen as a product of a ‘backward’ culture or religion in a pathologizing manner. The narratives in our study illustrate the interplay between culture, religion, poverty and state practices including immigration practices which points to the need for a more sophisticated and nuanced understanding of forced marriage. We end our paper by outlining measures that could be put into place to support women experiencing forced marriage.

Disgrace on the Rock

ICTURINACTION□ MOROCCANMIGRANT WORKERSINGIBRALTAR Disgrace on the Rock IICTUR were discover international remained dismayed situation step Gibraltar that officers out with law the to of in were dismayed to discoverthatthe situationin Gibraltar remainedout of step with international law DANIEL BLACKBURN isDirector of the International Centre for Trade Union Rights. Inthe Unite late continuing contacted 2008 the allegations ICTUR Gibraltar to express District of discrimination concern Officeof at Unitecontacted ICTURto expressconcernat the continuing allegationsof discrimination and arbitrary treatment of Moroccan migrant workers, manyofwhomhavebeen lawfully residentinGibraltar forup to40 years. Some 15 yearsago an earlier ICTURinvestigationhad takenplace,resulting inthepublication 'Moroccan workers inGibraltar' (1995)whichcriticiseda seriesoffailures to respect international standards. ICTURofficers weredismayed to discoverthat thesituation inGibraltar remained seriouslyout of step withthe minimum standards requiredunderinternational law and agreedto visit theRockandcarry outa further study. InFebruary 2009a delegation from ICTURtravelledtoGibraltar to investigate thesituation. History and background Formanydecadesnow Gibraltar has been largelydependent upontheservices ofa largenumber ofmigrant workers inorderto support industries associatedwiththe military dockyards. Priorto 1969themajority ofthesemigrant workers were Spanishcitizens, who crossedintoGibraltar on a daily basis fromsouthernSpain. In 1969 the Spanishauthorities closed the borderleavinga strategic military facility facing a severecrisis with shortages ofseveral thousand workers whocould not be replaced locally. In desperation,the Gibraltarian state and the United Kingdom Ministry of Defenceturnedto the Kingdomof Morocco,just a few miles across the Straits. Thousandsof Moroccanworkers wererecruited andencouraged totravel toGibraltar andtotake up employment withthePublicServices Agency whichmanagedconstruction, property and service operationsaround the naval dockyard. Within ninemonths of the 1969borderclosure theMoroccanmigrant workforce consisted of at leastthree thousand workers. Foralmost 40 years- andinsomecaseslonger that this - Moroccan migrant workers haveplayed an essentialrole in supporting theeconomyof Gibraltar by maintaining the dockyards. During theheight of thecold war periodfunding from theUnitedKingdom Ministry of Defencerepresented 60percent ofGibraltar's GDP.Despitepayingtaxesthroughout thisperiod, thegreat majorityof themigrant workers are by variousmeasuresunableto benefit equallyfrom manyentitlements enjoyedbyGibraltadans, suchas social security entitlements, education fortheir children, andhealth carefor their families. Theyarebarred fromthe subsidisedpublic housingused by Gibraltarians and can liveonlyin expensiveprivate sectorrentalaccommodation (if theycan afford it,whichmanycannot)or in badly-maintained ,dirty, infested, unsafeand overcrowded 'hostels' that a member ofourdelegation branded "thedisgrace ontheRock". During their residence in Gibraltar (whichforsome coverstheir entire working livesof40 yearsor more)themigrants have been politicallydisenfranchised - their attempts toregister ontheelectoral rollhavebeen deniedbecausethey'areMoroccan nationals'. In spiteof theirimmensecontribution to the economic, socialandcultural life ofGibraltar over a periodofalmost40 yearsitis theunfortunate reality that thevastmajority ofMoroccan migrant workers liveinshocking conditions andcomplain ofbarriers totheir fundamental humanrights. A boomingeconomy Whatever thereasonsfortheshameful treatment ofMoroccan workers inGibraltar itisclearthat a weak economycan'tbe theexcuse:theenclave is booming,as an articlepublishedin The Guardianmade clear.Amongtheissuesidentifiedbyjournalist GilesTremlett during hisrecent visit to Gibraltar werethefollowing: ■ Gibraltar is actively trying toattract 'highnetworth individuals' totakeup residency; ■ Sleeknewhigh-rise apartment blocksfor'rich foreigners' linetheharbour; ■ The economyis booming - chief minister PeterCaruanaclaimed:"Ifwe werea sovereignstatewe wouldbe 13thintheworldin GDP percapita". 'Good times on MainStreet for thriving Gibraltar', publishedin TheGuardian , Tuesday24 March 2009 WhatWe Found Ourinvestigation revealedfivemainheadingsof complaint: ■ Familyre-unification: Moroccan migrant workers toldus their families areonly allowedtovisit themduring thesummer. The workers finditdifficult tovisit their families due tothepoorferry service linking Gibraltar and Morocco.As non-EUcitizens theyare deniedaccesstofastand efficient Spanish ferries from nearby ports. ■ Civillights:themigrants havepaidtaxes and contributed tosociety formanyyears:in somecases fortheir entire working livesover periodsof40 yearsorevenmore.As non-EU nationals throughout thisperiodthey have been deniedtheright tovote.Manymigrant workers toldus thattheyhaveattempted to register buthavehad their applications turned downon thebasisofnationality. ■ Housing:Moroccan workers aredeniedaccess toaffordable publichousing, whichis subINTERNATIONAL union rights Page 22 Volume 16Issue 2 2009 Left: Professor Keith Ewing and Jonathon Jeffries of ICTUR inspect one of the filthy 'rooms' at the Buena Vista migrant workers' hostel. This room was temporarily unoccupied and would normally be filled almost entirely by asmall bed.©ICTUfì. sidised andoccupiedbyGibraltarians. Moroccan workers must either liveatone of thehorrendous hostels, whichareinhabited for themostpartbythelow-paid, theold,sick andimpoverished orpayhighprivate sector rental fees,considerably inexcessofthesums that Gibraltarian workers payfortheir much higher-quality subsidised publichousing. ■ Publicservicesand welfarebenefits: migrant workers' families arebarred from accesstosomepublicservices whenvisiting them inGibraltar. Migrant workers themselves facebarriers and problems inaccessinghospitals inSpainandtheUK. ■ Naturalisation: Moroccan migrant workers resident inGibraltar forlongperiodsoftime (including someresident for40 yearsor more)havestruggled toobtainnaturalisation. Allofthepeoplewe spokewith, including localpolitical leaders, wereawareof'talk'or 'a rumour' that there existedarbitrary, unpublishedandunofficial policiesthatareapplied toapplications. Meetingsheld TheDistrict Office ofUniteprovided everyfacilityto supportICTUR'svisitand organisedan itinerary of meetings withtheMoroccanworkers 'associations, Uniteofficials and representatives of the GGCA trade union, as well as arranging a seriesof invaluablemeetings with...

A very British muddle

The latest row in Britain's NHS is about overseas doctors. The Department of Health last month announced that international medical graduates (from outside the European Union) in training posts will now need a work permit before taking such posts. This puts them in the same position as most non-EU nationals seeking to work in the UK, but doctors in training had until now been exempt. Not surprisingly, this has caused anger among overseas graduates currently in training (15 April, p 913; bmj.com/cgi/eletters/332/7544/744-a), who now see only uncertainty when their current post comes to an end. …

Non-EU nationals and Council Directive 2003/109/EC on the status of third-country nationals who are long-term residents: Five paces forward and possibly three paces back

Non-EU nationals and Council Directive 2003/109/EC on the status of third-country nationals who are long-term residents: Five paces forward and possibly three paces back

Refugee Law in Ireland: Disregarding the Rights of the Child-Citizen, Discriminating against the Rights of the Child

This paper relates to the particular difficulties which have arisen in Ireland with regard to asylum-seekers who have Irish-born children. Irish Constitutional law and Irish legislation dictates that children born in Ireland are to be granted Irish citizenship. Until recently, the effect of this legislation had been interpreted in light of the Constitutional guarantee regarding the protection of the family unit with the result that the non-EU national parents and families of children born in Ireland generally qualified for Irish residency. However, a recent decision of the High Court, which emphasised the need to protect the ‘integrity’ of the Irish asylum system, held that the immigrant parents of Irish-born children were not entitled to remain in the State. This paper contends that the Irish High Court not only circumscribed the rights of Irish-born children whose parents are non-EU nationals, it (re)inforced the notion that the effective protection and imphlementation of the citizen rights of Irish-born children will depend on the nationality of their parents, a notion which runs contrary to the non-discrimination provisions of national and international law regarding the rights of the child and the protection to be accorded to the family unit.

Human Trafficking: Simply a European Problem?

During the 1980s, a debate opened up about the meaning of the concept of ‘free movement of persons’ enshrined in the Treaty of Rome 1957. Some Member States felt that this should apply to EU citizens only, which would involve keeping internal border checks in order to distinguish between citizens of the EU and non-EU nationals. Others argued in favour of free movement for everyone, which would mean an end to internal border checks altogether. The Schengen Agreement was signed in 1985 in the village of Schengen, on the borders of Luxembourg, France and Germany. Having decided to implement the intention expressed in that agreement of bringing about the abolition of checks at their common borders on the free movement of persons and facilitating the transport and movement of goods, it could be argued that the Schengen acquis has made it easier for human traffickers to break down internal EU borders in the true spirit of the agreement; after all Schengen’s main purpose was to remove all controls at internal land, sea and airport frontiers. Today there are about 3–4.5 million people living in the EU without any legal papers, with an estimated 400,000 people a year being trafficked into Member States. This means that particularly women and children sans papiers are without legally protected human rights. It is questionable whether international law enforcement agencies, such as Europol, Interpol or the FBI, are truly collaborating in the field of human trafficking, since their different intelligence systems do not really talk to each other yet, exacerbated by Europol’s insistence on eleven language multi-lingualism. Ultimately, trafficking of humans only adds to the funding of global terrorism. Besides being a human rights issue, trafficking in humans is a public health concern due to the widespread infection of HIV/AIDS, and other sexually transmitted diseases; it is a transnational organized crime and socio-economic issue. For this reason it is important that all law enforcement agencies, particularly in Europe, ought to make cooperation in this field its priority. Though a variety of measures have been taken in order to maintain internal security, it is becoming increasingly obvious that organized criminal gangs from largely Eastern Europe, Russia and the Ukraine are well versant in the coordination of visas and illegal passports in order to bypass border controls between Member States. Passengers travelling between the eight Schengen countries are not subjected to stringent passport or identity checks, and when using air travel, leave from domestic rather than international airport terminals (apart from the UK and Ireland). This has resulted in some atrocious human trafficking casualties: in 1998, 90 Romanian illegal immigrants were rescued from a sealed truck in Italy, suffering from asphyxiation. In the same year, dozens of Sri Lankans died after a driver left them locked-up in a container lorry at the Austro-Hungarian border and in 1999, 173 people were reported drowned in the Adriatic Sea, attempting to cross from Albania to Italy.

The impact of non-EU nationals on a genitourinary medicine infectious disease clinic

The impact of non-EU nationals on a genitourinary medicine infectious disease clinic

Demographic and socio-economic determinants of community and hospital services costs for people with HIV/AIDS in London

We examined the influence of demographic, social and economic background of people with HIV/AIDS in London on total community and hospital services costs. This was a retrospective study of community and hospital service use, needs and costs based on structured questionnaires administered by trained interviewers and costing information obtained from the service purchasers and providers, based on two Genito-urinary Medicine clinics in London: the Jefferiss Wing at St. Mary's Hospital and Patric Clements at the Central Middlesex Hospital, London, England. The subjects were 225 HIV infected patients (105 asymptomatic, 59 symptomatic non-AIDS and 61 AIDS). We found that over and above well established determinants of health care costs for HIV infected people such as disease stage and transmission category, social and economic factors such as employment and support of a living-in partner significantly reduced community services costs. Private health insurance had a similar effect, though only a small proportion of HIV people had such cover. The cost of community services for HIV infected non-European Union nationals, mainly of African origin, was one quarter that for the European Union nationals. Community services costs were highest for heterosexually infected women and lowest for heterosexually infected men after adjusting for other factors. Hospital services costs were significantly higher for HIV infected people lacking educational qualifications and employment. We conclude that access to community care for HIV infected non-EU nationals appears to be very poor as the cost of their community services was one quarter that for the EU nationals after adjusting for the effects of transmission category, disease stage, living with a partner, employment and having a private health insurance. Additional incentives for informal care for HIV infected people could be a cost-effective way to improve their community health service provisions.

Reconfiguring the spatiality of power: the construction of a supranational migration framework for the European Union

This paper examines the construction of a supranational framework for immigration control for the European Union since the mid-1980s and its implications for national sovereignty, for EU membership and for migrants. As in the case of European integration more generally, this construction process has been highly contested, involving numerous negotiations, tensions and struggles among different political actors situating themselves and operating at different geographic scales. Contestation occurred over three issues in particular: first, over where power and authority should be located—at which geographic scale and in which institutions; second, over geographic scope—the territorial extent of the framework; and third, over the principles according to which power and authority should be exercised—over divergent visions of justice and democratic accountability. Examination of the cacophony of intergovernmental institutional arrangements and agreements on immigration matters suggests that power over the immigration of non-EU nationals remains in the hands of nation-states, with supranational policies materializing only when they are seen as consistent with national interests. An analysis of the tensions and struggles between different state and non-state actors concerning the rights of current and potential non-EU immigrants reveals contrasting visions of justice and democratic accountability. Juxtaposed to the exclusionary policies promoted by national government representatives and right-wing nationalist parties are calls by transnational nongovernmental organizations for more inclusionary policies encompassing the protection of human rights of immigrants and their representation in the democratic process.