It has to be said that Belgium is still struggling to understand these rules on the protection of the child’s best interests. In any case, we must now take a closer look at a case in which the Belgian courts take the view that the best interests of the child only come into play if the child is the defendant in a case such as this, where the father has been ordered to leave the country and has also been issued with an entry ban. There is no mention of what led to him being ordered to leave the country with a re-entry ban on top of that, but one must assume that he has been charged with or convicted of serious offences.
He has a Belgian spouse and the couple have a minor child together. The child is a Belgian national. The Belgian court specialising in immigration law takes the view that it is HE who is the accused, not the child. That the court is only required to take the child’s best interests into account if the case specifically concerned the child and the child was in the dock, charged alongside his father. As long as that is not the case, there is no need to take the child’s best interests into account.
The Court does not agree with this view. One need only read the responses in paragraphs 27, 31, 32 and 36 in isolation. The Belgian argument is completely dismantled. On the one hand, the child’s best interests must be taken into account BEFORE a decision on removal is made, not afterwards; on the other hand, taking the child’s best interests into account is an OBLIGATION, not an optional matter, in all cases where there is even the slightest hint of children being involved in one way or another, and, thirdly, one cannot construct a narrative suggesting that the child’s best interests are only relevant if the child is personally the subject of a deportation order.
Directive 2008/115, referred to in the judgement, applies in Denmark as it forms part of the Schengen cooperation. The Directive is known as the ‘Return Directive’ and deals with how Member States are to conduct themselves in cases concerning the removal of undesirable persons.
Paragraph 27 of the judgment states explicitly that the mere fact that the parent who is a national of the country is capable of caring for the child alone may form part of the overall assessment of the case, but it cannot stand on its own. Despite this admonition, Denmark relied on precisely that single point to justify the removal of numerous fathers and mothers of minor children with dual Danish citizenship right up until October 2022. This was the sole focus, and nothing else was taken into account.
The Court’s ruling had no impact on Danish practice.
Link to the judgment in Case C-112/20, M.A. v. Etat Belge:
https://eur-lex.europa.eu/legal-content ... 2020CJ0112
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals:
https://eur-lex.europa.eu/legal-content ... 32008L0115
The Charter of Fundamental Rights of the European Union – SECTION III – EQUALITY – Article 24 – Rights of the child:
https://eur-lex.europa.eu/legal-content ... :12007P024
Full AO1 walk-through
-
Kim P. Nyberg
- Indlæg: 3498
- Tilmeldt: 02.02.2009 11:41:42
- Geografisk sted: Herning
- Kontakt:
Re: Full AO1 walk-through
Frivillig rådgiver i Ægteskab Uden Grænser
-
Kim P. Nyberg
- Indlæg: 3498
- Tilmeldt: 02.02.2009 11:41:42
- Geografisk sted: Herning
- Kontakt:
Re: Full AO1 walk-through
‘Clear all the desks, and do it NOW!!’ – the command almost echoes through the corridors of the Danish Immigration Service, even though the two joined cases we are now going to look at are not against Denmark. It is May 2022; the cases are against Spain and are the direct cause of the change in practice in Denmark, which took effect on 14 October 2022 at 11.58 am. The parties to the cases have the rather unwieldy initials XU and QP.
The fact is that when the Court of Justice issues a ruling, it applies immediately in all Member States, and not just in the Member State to which it relates. In practice, the word ‘immediately’ is not given particular weight, as Member States would prefer first to have the opportunity to sit down and draw up a national interpretation of the judgment. In other words: how do WE in OUR country understand this ruling, and then put that down on paper. But as a matter of principle, the rulings apply from the very moment they are published on the Court’s website. And one cannot use the fact that a particular judgment is not yet available in one’s own language as an excuse.
As mentioned, we’re heading to Spain, and this ruling bears a striking resemblance to something we’ve seen before in this series. The only difference is that, on this occasion, the Court of Justice makes it clear that it is aware that Member States have not fully grasped all these issues concerning the best interests of the child, and so the Court sets it out in no uncertain terms so that there can be no misunderstanding.
In the XU case, we have a third-country national, a Spanish Union citizen and a child of joint parentage holding Spanish nationality. In the QP case, the cast of characters is similar, but with the added complication that the third-country national has brought a child from a previous relationship into the new relationship.
It is clear from the judgment that the Spanish authorities wish to have these two adult third-country nationals deported from the country, and in this context they demand that the children and the parents who are EU citizens be deported as well. Under Spanish law, it is in fact a requirement that the couples remain together at all times. However, the Court points out that Spanish law cannot be enforced in other countries, so they cannot in fact dictate that the two core families, separately, MUST live together in another country. Furthermore, Member States do not have the authority to deport their own nationals. So the Spanish authorities should put an end to this practice.
We are then given – in a very educational manner – a recap of the implications of previous judgments. That the best interests of the child are the absolute top priority in ALL cases involving minors; that a third-country national who is the parent of such a child cannot simply be deported – not even to another Member State – without the best interests of the child being given primary consideration. And so on.
Friday 14 October 2022 was then the day on which the two Danish ministries, the Ministry of Justice and the Ministry of Immigration and Integration, issued a joint change in practice just as staff in the central administration and various agencies were heading home for the weekend. The change in practice was intended to interpret this ruling. What a clean-up it led to. Although, as mentioned, the judgment was not directed at Denmark specifically, the Danish authorities were indirectly given a verbal slap on the wrist by the Court of Justice. For the practice the Danish authorities had followed of deporting third-country parents on the basis of minute legal technicalities, and justifying these deportations solely on the grounds that the Danish parent could simply look after the child, was absolutely illegal. So now it was time to sort things out. The Danish Immigration Service was required to reopen, on its own initiative, all cases in which a third-country parent had been deported on these grounds since the Chavez-Vilchez ruling was published. In cases dating back further, people had to make their own appeals. This created a serious rush of work at the Danish Immigration Service. Within a very short space of time, they were faced with several thousand cases where they had to politely apologise to those affected for the mess, and not everyone took the apology in good spirits. For some, the deportation was the direct reason why they were no longer in a relationship with their Danish partner or spouse, nor did they have any plans to return. The treatment they had received from the Danish authorities was a direct deterrent. Denmark’s strict immigration policy had shown its teeth, and they did not want to be subjected to it again.
For others, it was a huge victory, with confetti flying and champagne corks popping in their small homes as they realised the significance and far-reaching impact that this change in practice had – and still has.
For yet others, the motto was that when something sounds too good to be true, you should probably take it with a pinch of salt. They simply didn’t believe it. After all, they were used to the strict immigration policy, and now the whole thing had been thoroughly dismantled.
At Christiansborg (housing the Danish Parliament), one might have thought this would provoke such fury that the roof would be blown off the entire building. To everyone’s great surprise, it was completely silent. It seemed as though the politicians hadn’t even noticed that something was happening which they’d never in their wildest dreams imagined could happen.
Or perhaps they were simply watching in silence as a large part of the strict immigration policy had gone as limp as a wet dishcloth. Without being able to do anything about it.
As early as the following week, we saw the result of this new change in practice. Cases began to trickle in where the Danish Immigration Service had reversed previous decisions. Now these third-country nationals were free to return to Denmark and apply for a residence permit on the basis of their child in common. What’s more, the application was made free of charge.
Were the staff at the Danish Immigration Service red-faced? Perhaps they ought to have been, given the huge blunder they’d been making for several years. But that wasn’t the case. Instead, there were broad smiles amidst the chaos surrounding all these cases, because they could now give a positive response instead of a negative one.
Even today, we still occasionally come across cases where people pause and ask whether it can really be true that it has become SO easy. To this, we can only reply that yes, it really is true.
Link to the judgment in the joined cases C-451/19 and C-532/19, Subdelegación del Gobierno en Toledo v XU and QP:
https://eur-lex.europa.eu/legal-content ... 2019CJ0451
Opinion of Advocate General P. Pikamäe delivered on 13 January 2022:
https://eur-lex.europa.eu/legal-content ... 2019CC0451
The change in practice dated 14 October 2022, issued by the Ministry of Justice in collaboration with the Ministry of Immigration and Integration:
https://nyidanmark.dk/en-GB/News-Front- ... nification
The fact is that when the Court of Justice issues a ruling, it applies immediately in all Member States, and not just in the Member State to which it relates. In practice, the word ‘immediately’ is not given particular weight, as Member States would prefer first to have the opportunity to sit down and draw up a national interpretation of the judgment. In other words: how do WE in OUR country understand this ruling, and then put that down on paper. But as a matter of principle, the rulings apply from the very moment they are published on the Court’s website. And one cannot use the fact that a particular judgment is not yet available in one’s own language as an excuse.
As mentioned, we’re heading to Spain, and this ruling bears a striking resemblance to something we’ve seen before in this series. The only difference is that, on this occasion, the Court of Justice makes it clear that it is aware that Member States have not fully grasped all these issues concerning the best interests of the child, and so the Court sets it out in no uncertain terms so that there can be no misunderstanding.
In the XU case, we have a third-country national, a Spanish Union citizen and a child of joint parentage holding Spanish nationality. In the QP case, the cast of characters is similar, but with the added complication that the third-country national has brought a child from a previous relationship into the new relationship.
It is clear from the judgment that the Spanish authorities wish to have these two adult third-country nationals deported from the country, and in this context they demand that the children and the parents who are EU citizens be deported as well. Under Spanish law, it is in fact a requirement that the couples remain together at all times. However, the Court points out that Spanish law cannot be enforced in other countries, so they cannot in fact dictate that the two core families, separately, MUST live together in another country. Furthermore, Member States do not have the authority to deport their own nationals. So the Spanish authorities should put an end to this practice.
We are then given – in a very educational manner – a recap of the implications of previous judgments. That the best interests of the child are the absolute top priority in ALL cases involving minors; that a third-country national who is the parent of such a child cannot simply be deported – not even to another Member State – without the best interests of the child being given primary consideration. And so on.
Friday 14 October 2022 was then the day on which the two Danish ministries, the Ministry of Justice and the Ministry of Immigration and Integration, issued a joint change in practice just as staff in the central administration and various agencies were heading home for the weekend. The change in practice was intended to interpret this ruling. What a clean-up it led to. Although, as mentioned, the judgment was not directed at Denmark specifically, the Danish authorities were indirectly given a verbal slap on the wrist by the Court of Justice. For the practice the Danish authorities had followed of deporting third-country parents on the basis of minute legal technicalities, and justifying these deportations solely on the grounds that the Danish parent could simply look after the child, was absolutely illegal. So now it was time to sort things out. The Danish Immigration Service was required to reopen, on its own initiative, all cases in which a third-country parent had been deported on these grounds since the Chavez-Vilchez ruling was published. In cases dating back further, people had to make their own appeals. This created a serious rush of work at the Danish Immigration Service. Within a very short space of time, they were faced with several thousand cases where they had to politely apologise to those affected for the mess, and not everyone took the apology in good spirits. For some, the deportation was the direct reason why they were no longer in a relationship with their Danish partner or spouse, nor did they have any plans to return. The treatment they had received from the Danish authorities was a direct deterrent. Denmark’s strict immigration policy had shown its teeth, and they did not want to be subjected to it again.
For others, it was a huge victory, with confetti flying and champagne corks popping in their small homes as they realised the significance and far-reaching impact that this change in practice had – and still has.
For yet others, the motto was that when something sounds too good to be true, you should probably take it with a pinch of salt. They simply didn’t believe it. After all, they were used to the strict immigration policy, and now the whole thing had been thoroughly dismantled.
At Christiansborg (housing the Danish Parliament), one might have thought this would provoke such fury that the roof would be blown off the entire building. To everyone’s great surprise, it was completely silent. It seemed as though the politicians hadn’t even noticed that something was happening which they’d never in their wildest dreams imagined could happen.
Or perhaps they were simply watching in silence as a large part of the strict immigration policy had gone as limp as a wet dishcloth. Without being able to do anything about it.
As early as the following week, we saw the result of this new change in practice. Cases began to trickle in where the Danish Immigration Service had reversed previous decisions. Now these third-country nationals were free to return to Denmark and apply for a residence permit on the basis of their child in common. What’s more, the application was made free of charge.
Were the staff at the Danish Immigration Service red-faced? Perhaps they ought to have been, given the huge blunder they’d been making for several years. But that wasn’t the case. Instead, there were broad smiles amidst the chaos surrounding all these cases, because they could now give a positive response instead of a negative one.
Even today, we still occasionally come across cases where people pause and ask whether it can really be true that it has become SO easy. To this, we can only reply that yes, it really is true.
Link to the judgment in the joined cases C-451/19 and C-532/19, Subdelegación del Gobierno en Toledo v XU and QP:
https://eur-lex.europa.eu/legal-content ... 2019CJ0451
Opinion of Advocate General P. Pikamäe delivered on 13 January 2022:
https://eur-lex.europa.eu/legal-content ... 2019CC0451
The change in practice dated 14 October 2022, issued by the Ministry of Justice in collaboration with the Ministry of Immigration and Integration:
https://nyidanmark.dk/en-GB/News-Front- ... nification
Frivillig rådgiver i Ægteskab Uden Grænser