In this blog Professor Elspeth Guild will briefly outline the key fundamental rights which are put in question under each category and conclude with some general comments.
Author: Elspeth Guild, Professor of Law at Queen Mary University of London[1]. Originally published 21 May 2020 on the Refugee Law Initiative Blog on Refugee Law and Forced Migration.
The most profound measures which European states have taken to reduce the risk of spread of Covid19 have been around free movement of persons. These measures have three dimensions: (1) free movement of persons across EU external borders; (2) free movement of persons across internal borders of EU (and Schengen participating) states and (3) free movement of persons within states. Measures adopted in each of the three fields constitute challenges to the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR) but in different respects. In this blog I will briefly outline the key fundamental rights which are put in question under each category and conclude with some general comments.
Among the first measures which EU states began to take in February and March 2020 as Covid19 took hold in Italy in particular, was to close their international borders. There was a dramatic slowdown in air-traffic (according to the Commission, by 31 March 2020 the overall reduction was 86.1% compared to a year earlier (COM(2020)148)). Ferry, coach and rail transport followed suit. These international border measures started in a rather uncoordinated manner, notwithstanding the 10 March statement of the EU Heads of State or Government of the need for a joint EU approach. The Commission was quick to remind Member States that any action at the external border must be applied to all parts of the EU’s external border to be effective (COM(2020)115). People who continued to travel were frequently directed by the destination state authorities to place themselves in quarantine for 14 days. But not all EU and Schengen states followed this approach. None of these states closed all their international (or intra-EU) borders. But the permitted reasons for international travel varied substantially. The challenge was reaching agreement on essential and non-essential but permitted travel. The European Commission was particularly active in seeking agreement among the Member States that all EU (and Schengen Associated states) citizens and their family members must be exempt from temporary travel restrictions for the purposes of returning to their homes (COM (2020) 115).
There is a fundamental right of free movement for EU citizens (Article 20 Treaty on the Functioning of the EU (TFEU) and Article 45 EU Charter). This is a complex right as it is both a fundamental freedom (Article 20 TFEU) and a fundamental right (Article 45 Charter). As a fundamental freedom the Court of Justice of the European Union (CJEU) has acknowledged that it includes the right of an EU citizen not to be forced to leave the EU (the Zambrano caselaw, see below) which indicates it also must include a right to enter the EU. As a fundamental right, its origin is closely associated with Article 4(2) Protocol 4 ECHR which establishes the right of all nationals to enter their state. However, as a fundamental freedom, an EU citizen entering the EU by a state other than that of his or her underlying nationality is entitled to reside in the host state with no restrictions for three months. Thereafter the EU citizen must show that he or she fulfils the conditions of Article 7 Directive 2004/38 (worker, self-employed, student, pensioner or self-sufficient). So, the Commission’s position that entry for the purpose of repatriation to the country of underlying nationality is problematic. An EU citizen arriving in any Member State is entitled to enter subject to not being a threat to public policy, public security or public health and to remain there after 3 months as long as he or she fulfils the conditions. The state’s right to prohibit entry into the EU (or intra-EU border crossing) to EU citizens and their family members on the ground of public health is limited in the legislation. It can be invoked solely for infectious diseases listed by the World Health Organisation (WHO). According to the WHO fact sheet on infectious diseases (46 in total), Avian flu is one but Covid19 has not yet been added. In the Covid19 times, it may well be that greater flexibility is needed of the public health proviso. However, there is also the EU principle of non-discrimination on the basis of nationality at issue. Where states place a limitation on 14 days quarantine on both their own nationals and third country nationals entering their state, the limitation of entry of other EU (Schengen) state nationals to transit raises questions of compatibility. This issue was partially resolved, or at least addressed, by the Commission’s Communication (2020/C 102 1/03) guidelines concerning the exercise of free movement of workers. This Communication addresses primarily intra-EU (Schengen) free movement so it will be dealt with below.
A number of third country nationals were expressly included in the Commission’s communications and guidelines to Member States on measures at the external borders. These include long term resident third country nationals under Directive 2003/109, and for the purposes of repatriation/return to a home country, nationals of Serbia, North Macedonia and Turkey were assimilated to those of Member States (Com(2020)2050). The UK was also included. The inclusion of long term resident third country nationals seeking to transit to the EU state of residence supports the UN Human Rights Committee’s interpretation of the human right contained in Article 12(4) UN International Covenant on Civil and Political Rights (to enter one’s country) as extending also to resident aliens (General Comment 27). But it is neither fundamental right under Article 45 Charter which is reserved for EU citizens nr is it a human rights under Article 4(2) Protocol 4 ECHR which is limited to nationals. There is no obvious fundamental right source for this inclusion of some candidate states but not others (eg Albania, Bosnia Herzegovina, Montenegro etc).
Article 18 Charter sets out the right to asylum. This right includes the right to non-refoulement including at the EU’s external borders (included both in the instruments of the Common European Asylum System and the Schengen Borders Code (Article 3(b) Regulation 2016/399). While the Commission’s 1st Communication on temporary restrictions on non-essential travel (COM(2020) 115) included a reference to persons in need of international protection or for other humanitarian reasons, the Commission’s Guidelines for border management measure to protect health (COM(2020) 1753) did not. In practice there are substantial concerns about how the right to asylum (non-refoulement at the external EU border) is actually being delivered. On 9 April UNHCR issued Practical Recommendations and Good Practice to Address Concerns in the context of the Covid19 pandemic. The first section is dedicated to ensuring access to territory while protecting public health. UNHCR states that there is an “emerging State practice in many European countries of providing for an explicit exemption for persons seeking international protection from border closures and entry bans” (UNHCR 9 April 2020). It is a matter of some concern that the internationally applicable right to non-refoulement is not rigorously accepted and implemented by all EU states and UNHCR has to refer to it as “an emerging state practice.”
On account of concerns about Covid19 in the EU, a number of EU (and Schengen) Member States, (parties to the border control-free Schengen area) have temporarily reintroduced border controls on persons at their borders.
From a fundamental rights perspective, Article 45 Charter establishes the right of free movement of persons across intra-EU state borders. As mentioned above, this is both a fundamental freedom (TFEU) and a fundamental right (Charter). While most EU states are also Schengen states, which means that they have abandoned intra-state border controls on persons a small minority are not yet (Bulgaria, Cyprus, Ireland and Romania). Croatia has been admitted to the Schengen area politically but not yet integrated. To complicate matters further, a number of non-EU states are also Schengen states – Iceland, Liechtenstein, Norway and Switzerland. 15 Member States (out of a total of 27), at the time of writing, have introduced temporary intra-(Schengen) state border controls on person on Covid19 grounds.[2] Norway and Switzerland (non-EU states) have also introduced intra-Schengen controls on Covid19 grounds. Cyprus, Bulgaria, Ireland and Romania are EU states but not part of the Schengen border control free area. The right to free movement is not premised on border control free passage as it predates the Schengen area and in EU legislation (Article 5 Directive 2004/38) Member States are permitted to check passports or identity documents to establish a right of entry on the basis of nationality but there is a right of entry. Member States are entitled to refuse free movement of persons on grounds of public policy, public security and public health.
First, regarding the Schengen area, in order to ensure that the fundamental movement right across internal EU borders is protected, the Commission requested all those Schengen States introducing temporary checks on Covid19 grounds to indicate their permitted border crossing points (land sea and air). Six have so far failed to deliver their lists (Austria, Belgium, Spain, Portugal, Denmark and France). Germany has notified the largest number of border crossing points as still open: 84, followed by Poland with 60 and Estonia with 43. These numbers include land, sea and air. The choices are very interesting from the perspective of the claimed necessity of closing other border crossing points, but that investigation is beyond the purposes of this blog. Suffice it to note that the numbers are not insignificant.
Secondly, to protect free movement of workers, the Commission issued a Communication at the end of March providing guidelines (2020/C 102 1/03). It is linked to the Guidelines for border management referred to above. The free movement guidelines require all restrictions to be necessary, proportionate and based on objective and non-discriminatory criteria. Frontier workers, posted workers and seasonal workers were singled out for particular attention and protection. However, the Commission linked the free movement rights of those workers to their existing cross border economic activities and to critical occupations. This leaves open the question of new entrants to the labour market across borders. The Commission lists 17 occupations in this category of ‘critical’ category including, (as expected) Health professionals, but perhaps less foreseeable, fishermen, staff of public institutions in a critical function and firefighters, police officers, prison guards, security guards and civil protection personnel. The guidelines also state that health screening must be carried out in a non-discriminatory manner. Limits on screening at intra-EU borders are specified. Seasonal workers merit a special section where the Commission insists on their health and safety rights when working in another Member State.
From the perspective of the ECHR, which must be respected by the EU according to the Charter, there is no direct equivalent to Article 45 Charter except Article 4(2) Protocol 4. If citizens of the Union are entitled to access to the whole of the EU territory then do they enjoy rights equivalent to access to their state? This argument is countered by the continuing right of Member States to refuse admission expel nationals of another Member State but only on the specified grounds (which do not include Covid19). The Schengen area entails even more complex questions as border control free travel across these states includes everyone. It is not limited to EU citizens and their family members. But this is not a fundamental right. It is part of a fundamental freedom – free movement of persons which is realised through the Schengen system (see above).
Free movement of all persons within a state is both a fundamental right (Article 45 Charter) and a human right (Article 2(1) Protocol 4 ECHR). As an EU fundamental right it is limited to EU citizens, though it can be extended to third country nationals who are legally resident in the EU (Article 45(2)). As regards third country nationals, all the EU measures which provide a right of residence for third country nationals must be considered as relevant to the application of Article 45(2) Charter (eg the family reunification Directive 2003/86, the students and researchers Directive 2016/801, the Blue Card directive for highly skilled workers 2009/50 or even the seasonal workers Directive 2014/36). For the purposes of the ECHR, Article 2(1) is limited to people who are lawfully within the territory. (It is worth noting that Portugal, at the outset of the Covid19 crisis, issued measures providing for the automatic extension of residence permits, access to employment and full equal treatment in health and social benefits to all third country nationals who had an application pending. The justification was that third country nationals should not be penalised for the failure of the administration to determine their cases in a timely manner).
The limitation of Article 45 Charter to intra-EU movement is not self-evident. While Article 52(1) Charter requires the Charter rights to be co-extensive with their counterparts in the TFEU, the CJEU has already interpreted the TFEU rights attached to free movement (in particular family life) as also applicable in wholly internal situations. Thus, an interpretation of Article 45 Charter to a wholly internal situation does not offend against Article 52(2) Charter. Since the development of the Zambrano doctrine, whereby EU citizens are entitled to enjoy their EU rights even without having exercised a free movement right in another Member State, if requiring mobility would have “the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union” (C-34/09 para 42 ECLI:EU:C:2011:124). Thus Article 45 Charter may also apply to state measures taken to limit movement within their territory where no EU mobility right is at play. Further, under the Singh doctrine, EU nationals returning to their Member State of origin after exercising a free movement right are entitled to ‘import’ their EU rights with them (C-370/90 Singh ECLI:EU:C:1992:296). In addition, EU citizens exercising Treaty rights in a Member State other than that of their underlying nationality are entitled to rely on EU rights against measures which infringe their Treaty (and Charter) rights.
For the purposes of the ECHR, people who are lawfully within the territory of the state can make this claim to free movement to the state authorities. By virtue of the non-refoulement obligation in the Refugee Convention (the UN Convention against Torture and the ECHR) this must also include people who have made a claim to international protection. The ECHR right to free movement can be qualified so long as the interference is in accordance with the law, necessary in a democratic society and justified on one of the grounds which include health. The proportionality assessment is a part of the necessity requirement.
There is a scarcity of caselaw on Article 2 Protocol 4 ECHR as regards justification of limitations on free movement on public health grounds. Most of the cases related to criminal justice. It is closely related in the case law to Article 5 – the right to liberty and security (Article 6 Charter). This is the right not to be subject to arbitrary detention. Between the interference with the right of free movement and detention, the European Court of Human Rights (ECtHR) has stated that this is merely a matter of degree or intensity not one of nature or substance (Villa v Italy no 19675/06, para 40, 20 April 2010). The ECtHR has even gone so far as to suggest that in some borderline cases it may be a matter of opinion. An element of coercion is necessary, however. Article 5 has been applied by the ECtHR to detention by social services, international zones in airports, house arrest and crowd control efforts.
This caselaw is relevant because in the face of the same danger – a pandemic – Member States have taken very different approaches to the limitation of free movement (even where it borders on or crosses the border into detention). There are many arguments which will be made about the differences of the dangers apparent in each Member State and the state’s medical preparedness for a pandemic. The decisions which political leaders have taken have been based on the best of the information available to them and in good faith. Where, with the benefit of hindsight, it may seem that some measures were unjustifiably more extreme than others, there will undoubtedly be a margin of appreciation allowed by the courts in the implementation of the fundamental and human right to free movement. But where restrictions on free movement cross the line and become detention, the courts will have to decide whether to take a stricter approach. While this will be important for all EU citizens, it is also likely to be critical for third country nationals.
UNHCR in its 9 April 2020 Guidelines devoted a long section to the context of reception and detention. It draws the attention of Member States to the established fact that “people in detention, including asylum seekers or stateless people in immigration detention or other closed facilities, are at particular risk of a Covid19 infection.” (p 7). It seems that reception centre which have been open in a number of Member States have become closed in the interests of administrative operation during the Covid19 pandemic. From a restriction on free movement, these centres have become places of detention – in terms of the Charter and the ECHR constituting a fundamental and human rights question of greater gravity. Among the fundamental rights issues is to what extent this detention is arbitrary. UNHCR provides multiple examples of good practices where alternatives to detention of asylum seekers could be used (and have been used). These considerations apply not only to asylum seekers but to all third country nationals in immigration detention in times of Covid19.
The responses of EU states to the Covid19 pandemic in terms of measures at the external EU borders, their intra-Schengen borders and within their states raise challenges to EU fundamental rights and ECHR human rights. While everyone is working towards the same objective – diminishing the threat of the pandemic and taking measures to reduce the risk of spread of the disease through travel – vigilance is required to ensure that both fundamental and human rights are respected. First, equal treatment for EU nationals must be safeguarded. EU nationals are entitled to their free movement rights under both the TFEU and the Charter and in the exercise thereof, to equal treatment (including as regards health services). Border control measures must respect these rights and where exceptions are required, these must be justified on the basis of EU law – both the Charter and TFEU. Similarly, restrictions on free movement within states must fulfil the requirements of necessity, proportionality and legality. They must not be arbitrary and if they cross the line and become detention, the justification must meet the higher threshold of both EU and ECHR law.
Secondly, in respect of third country nationals, the prohibition on refoulement at the EU external border must be respected. Anyone seeking international protection at an EU external border must be protected from refoulement and measures of health protection (quarantine etc) put in place. The human dignity of everyone seeking international protection at an EU external border must be respected, including where this requires Member States to make available safe places for an individual to spend a time of quarantine.
Thirdly, third country nationals with residence rights in the EU must be permitted to enjoy those rights in accordance with Article 45(2) Charter. This includes as regards the crossing of both external and internal EU borders. Their rights to equal treatment must also be respected (cf the Single Permit Directive 2011/98) in particular as regards access to health services on a non-discriminatory basis.
Fourthly, there is need to be a step by step examination of the delivery of fundamental and human rights at all three stages of Member State action around free movement – the crossing of external EU borders, intra-Schengen and EU border crossing and within Member States. This must include an examination of ancillary issues which flank the right of free movement and the measures taken to limit it. These include (1) use of mass surveillance measures to track movement of people (and compliance with the European Data Protection Regulation and the Data Protection Directive); (2) the delay of democratic rights (such as elections) on the basis of Covid19 risks and (3) the introduction of state of emergency derogations by some EU states to human rights in the ECHR, in particular as regards free movement and detention.
[1] Many thanks to Professors Peers and Schabas for generously sharing documents with me, essential for this research, and to which, under the current limitations on movement, I would not otherwise have had access.
[2] Poland, Slovakia, Austria, Belgium, Estonia, Spain, Portugal, Lithuania, Hungary, Czech Republic, Finland, Sweden, Denmark and France.