University of Bristol Law School

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Participation through Courts? Judges for migrants’ rights

Virginia Passalacqua

The idea for this paper originated from my conversations with two judges, respectively from Italy and the UK, between 2016 and 2017. I met the Italian judge in his top-floor office in Venice Tribunal’s historic building, a few yards away from the Rialto Bridge. The British judge, instead, greeted me in his courtroom in the very heart of London, where the Inns of Court are.[1] The aristocratic atmosphere pervading such fascinating locations conveys the impression of judges being far away from migrants’ social and political struggles. This seems to confirm what Bruno Latour observed in his ethnography of the French administrative court: ‘the judges always keep themselves at a distance’.[2] However, this paper suggests that first impressions can be misleading, showing how these two judges proved to be vehicles for migrants’ voices and interests. In this short outline of my paper, I will look first at the Italian case and then at the British one, drawing some conclusions at the end.

Italy: litigation against the criminalization of migrants

In Italy, undocumented migrants can be charged with the crime of ‘clandestinity’, sanctioning the irregular entry and stay of third-country nationals with a fee ranging from 5,000 to 10,000 euros.[3] The crime was introduced by a right-wing government in 2009, which believed that increasing sanctions against undocumented migrants would deter third-country nationals. From both sides of the political spectrum, the introduction of the clandestinity crime was met with criticism. Some spoke of utilitarian considerations: criminalization de facto would not help decrease the number of undocumented migrants, but just overburden the criminal justice system. Others put forward fundamental rights arguments, observing how the crime has a segregating effect and an indiscriminate reach, affecting all migrants regardless of their individual situations.

While both in Parliament and Government’s discussions the undocumented migrants’ interests were thwarted by security discourses, migrants’ rights supporters began to mobilize against the clandestinity crime, trying to challenge it in courts.[4] In this respect, the associations and networks of migration law experts and practitioners played a crucial role; in particular, ASGI, the association for the juridical studies on immigration, and Magistratura Democratica, the Italian equivalent of a judges and prosecutors’ trade union.[5] They successfully triggered a legal mobilization which effects transcended the national boundaries: the case of Sagor brought the clandestinity crime under the scrutiny of the Court of Justice of the EU.

The interview with the Italian who referred the preliminary question in the case of Sagor was crucial to understand the role of migrants’ rights supporters in the stages pre-, during and postlitigation. This judge judge had been a member of Magistratura Democratica for many years, and explained to me how, since its adoption, the clandestinity crime had been his ‘pallino’: his idée fixe.[6] He wrote papers and participated in many events organized on the topic. Remarkably, he told me that, when he drafted the request for preliminary ruling, he was not alone: the preliminary reference in Sagor was a ‘joint effort’;[7] indeed, experts from the ASGI assisted the judge in the drafting of the preliminary reference.

Eventually, the Court of Justice did not endorse the Italian judge’s view and upheld the legality of the clandestinity crime, which is valid still today. However, the EU Court significantly narrowed the impact of the provision. The criminal sanction can now be imposed with due regard to the limitations contained in the Return Directive.8 Despite the small outcome of Sagor’s preliminary reference on the Italian migration framework, the case is an interesting example of how also judges rely on civil society networks for minority rights, challenging the traditional view that strategic litigation is the exclusive domain of public interest or non-governmental organizations.

The UK and the ‘Calais Case’

It is not a mystery that the Dublin Regulation is not working as it should. The Regulation determines the state responsible for the examination of an asylum claim and, consequentially, where the asylum seeker will reside. [9] ‘Mutual trust’ and ‘Member State of first-entry’ are the two principles underpinning the Dublin system: under the assumption that all EU member states have adequate standards of reception, the state in charge of examining the asylum request is the first where the third-country national arrives. Exceptions apply: unaccompanied minors should be under the competence of the state where a family member is legally present;[10] also, any Member State might decide to ‘take charge’ of an asylum request ‘on humanitarian grounds based in particular on family or cultural considerations’.[11] These last provisions are at the center of the case analyzed in this section.

One of the symbols of the Dublin system’s failures was the ‘Calais Jungle’. This was an informal encampment in the North of France where thousands of migrants found temporary homes while seeking to enter the UK, in order to reunite with their relatives there.[12] Some of the Jungle inhabitants intended to ask for asylum and to request a transfer to the UK in virtue of the Dublin regulation provisions protecting family unity. However, due to the extraordinary high number of asylum requests in the last years, processing their applications takes months or even years. Meanwhile, these people live in very precarious conditions; some of them were stuck in the Jungle for years.

In the midst of this difficult situation, members of humanitarian organizations in Calais and lawyers from France and the UK decided to team up and initiate a test case. Their aim was to bring the situation of the asylum seekers in the Jungle at the attention of British judicial authorities, bypassing the long procedure required by the Dublin Regulation. For the test case, they carefully choose third-country nationals whose vulnerability was undisputable: three unaccompanied children and a fourth adult suffering from mental health problems, all from Syria with family in the UK. They filed an application for leave to enter the UK, grounding their request on a family reunification claim. Unsurprisingly, the Home Department rejected their application: under the Dublin Regulation the applicants should first apply for asylum before the French authorities, which decide the country responsible for examining their request.

When the test case arrived before the Upper Tribunal, upon application for judicial review of the Home Department’s decision, it was clear that chances of success were low. Especially because the Court of Justice of the EU was very clear on the point: Dublin Regulation should always apply, unless there are systemic flows in the member states’ reception conditions, which was not the case of France.[13] Indeed, most probably the judicial review would have been dismissed by any judge, but the one that actually decided the case.

The British Judge saw in the ‘Calais case’ the expression of a conflict between two legal frameworks: the Dublin system and the European Convention of Human Rights. He stated that a rigorous enforcement of the Dublin regulation would have led to deny the rights to family life of the four applicants, protected by article 8 of the Convention; the judge decided to give priority to the human rights, so going against the case law of the Court of Justice. He issued an order to the Home Department to admit the four applicants on the UK territory.

Without diminishing the sophistication of its legal arguments, the most striking part of the judgment is its human dimension; the descriptions of the suffering of the applicants gives the 13 See joined cases of N. S. and M. E., Court of Justice of the EU, C-411/10 and C-493/10. Virginia Passalacqua European University Institute impression of an empathic and compassionate Judge, impression that was confirmed during our conversations. However, the Home Department filed an appeal against the judgment and convinced the Appeals Court to reformulate the British Judge’s interpretation in a stricter manner. But, even if the British Judge did not manage to impose his progressive interpretation, the four applicants made it to the UK and have not been sent back.

Preliminary Conclusions

What is interesting in these two stories, in my view, is their capacity of challenging a mono dimensional view of the Court of Justice and of EU Law. In a time of highly polarization of the EU and its Court, where either you love or you hate them, we need to stick to reality to understand that, often, they are what we want them to be. In these two cases, the CJEU was, first, an instrument of resistance against a xenophobic and repressive law. Then, the EU Court was defending the prevailing of procedures over human rights, and of states’ border control over people’s health and safety. These exemplar judges knew when to resort to the CJEU or when to depart from it.

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