Thou Shalt Not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals - A Critique

V. Diatta

Ms Diatta, a Senegalese national, was the wife of a French national living in Berlin. She resided there from February 1978. The marriage did not work. She separated from her husband in August of that same year with the intention of divorcing him and lived in separate accommodation. She sought to renew her residency permit which had expired. The Berlin Chief Commissioner of Police refused to do so on the ground that she was no longer a member of family of a Community national and hence she no longer enjoyed the legal right to reside in Germany. The Berlin Administrative Court upheld the refusal though it held that formally she was still married.

On a preliminary reference, the ECJ was asked whether Article 10(1) of Regulation 1612/68 may be interpreted as meaning that the spouse of a worker who is a national of a Member State and who is employed in the territory of another Member State may be said to live `with the worker' if she has in fact separated from her spouse permanently but nonetheless lives in her own accommodation in the same place as the worker. The Court was also asked whether Article 11 of the Regulation established for a spouse, who, though not a national of a Member State, is married to a national of a Member State in another Community country, a right of residence which does not depend on the conditions set out in Article 10 if the spouse wishes to pursue an activity as an employed person in the territory of that Member State.

In replying to the first question the Court first held that Article 10 `cannot be interpreted restrictively.' Consequently, `[a] requirement that the family must live under the same roof permanently cannot be implied.'⁵⁴

The Court further held that `the marital relationship cannot be regarded as dissolved so long as it has not been terminated by the competent authority. It is not dissolved merely because the spouses live separately, even where they intend to divorce at a later date.'⁵⁵

But, as regards Article 11, the Court stated that:

... it is clear from the terms of that provision that it does not confer on members of a migrant worker's family an independent right of residence, but solely a right to exercise any activity as employed persons throughout the territory of the state in question. Article 11 cannot therefore constitute the legal basis for a right of residence without reference to the condition laid down in Article 10.⁵⁶

Clearly, the ruling implies that once the divorce was complete, and provided that Ms Diatta, or other ex-spouses in that situation, did not come under other positive provisions of Community law regulating family members (especially Commission Regulation 1251/70) she could be expelled.⁵⁷

In reaching the implicit decision on this second point the Court followed its Advocate General. It rejected the Commission's view which belatedly (only in the Oral Hearing and having earlier submitted in writing a contrary position) and half-heartedly (`in reply to a question posed by a Member of the Court, the Commission's representative candidly admitted that view was, or at least, might appear somewhat bold'⁵⁸) argued that a spouse in this situation retained a right of residence. The sensitivity of the case is evident by the intervention of Germany, the UK and the Netherlands.

Since the decision of the Court is laconic it is worthwhile examining the reasoning of the Advocate General.

He argued:

a. That indeed the Commission position was bold (and wrong).

b. That `[w]hen the Community legislator wishes to transform a right which is initially consequential [derivative] into a personal right, it makes express provision to that effect.'⁵⁹

c. Following a `concern to provide a strict interpretation,'⁶⁰ the proper construction of Article 11 does not justify a conclusion that the Community legislator intended to transform the spouse's derivative right into a personal right.

The Court, as mentioned above, also adopted this strict approach, in holding that Article 11 `... does not establish a right of residence independent of that provided for in Article 10.'⁶¹

On a strict textual interpretation I agree with this conclusion, though I wonder about the criteria which prompt the Court and its Advocates General to adopt in some cases a `concern to provide a strict interpretation' and other cases to take a broader, purposeful or systemic view.

If I may be bold, I confess that either I did not understand the Advocate General and the Court, or, if I did, that their reasoning is, in my view, a colossal non-sequitur. Both Advocate General and Court seemed to have avoided the central issue; this for two distinct lines of reasoning.

The first line of reasoning is that of fundamental human rights.

In the oral hearing the Commission argued that `it would be contrary to fundamental rights if a migrant worker could remove, unilaterally and arbitrarily, the protection accorded by Community law to the members of his [or her] family.'⁶²

The Commission thus argued (though, unfortunately, without the full legal apparatus of a written submission) that an interpretation of the Regulation (the one adopted by the Advocate General and the Court) which allowed, nay empowered, a migrant worker to have such leverage over the life of his or her spouse by divorce (or even the threat of divorce) would violate the human rights which, let us not forget, it is the duty of the Court to protect in the field of Community law. In this case, unlike Demirel, there is no question that we are squarely in the field of Community law.

What kind of reply is it to this argument to try and construe - strictly or otherwise - the intention of the Community legislator and the proper meaning of the provisions of the Article and do no more? We can readily accept that indeed the Regulation means that once the divorce is complete (and provided no other measure of Community law may be pleaded ⁶³) the spouse loses the right of residence. But surely when a violation of fundamental human rights is at issue, a court cannot stop there, as do both the Advocate General and the Court of Justice. It must first decide whether in fact there is a binding norm of human rights applicable in the context of the case. It may find that there is no such binding human rights norm or that a correct interpretation of that norm does not bring it into conflict with the Community measure as it did in the Hauer case and numerous others. But if there is a norm and it does appear to be in conflict with the Community measure, the Court has two, and only two, options: either to construe the Community measure in such a way that it does not conflict with human rights norms (as the Commission argued) or to strike the Community measure down.

Here, to drive the point home, is a reductio ad absurdum. Imagine that the Community Regulation had a provision which could be interpreted to mean that the police may enter a migrant's house and search it without an appropriate court warrant. Imagine further that this interpretation were challenged as violating fundamental human rights. Would it be an adequate judicial response simply to construe - strictly or otherwise - the measure and conclude that it indeed meant that the police could so enter? Or would the court have to determine if such an interpretation violated some fundamental human right.

Thus, in the Diatta case simply to say that Article 11 does not itself give a right of residence, when that very interpretation is challenged as violating fundamental human rights, is no answer at all.

Note that I am not arguing that the Commission was necessarily right in saying that there was a violation of human rights. It would have been helpful if they were to articulate the contours and source of the right. There are several candidates. A construction of a Community measure which empowered say, a husband, to coerce his wife to do things under threat of divorce from which followed the consequence that she would be expelled, could potentially compromise the right to human dignity (encapsulated in Article 1 of the European Parliament Declaration of Human Rights); or it could compromise the right to family life if the husband gained custody over the children and such expulsion would sever the relationship between mother and children (or vice versa).⁶⁴ The Court should at least review the Regulation once a violation of human rights has been alleged and motivate its decision that the correct interpretation of Article 11 of the Regulation does not violate human rights.

One could try and explain the Opinion and the Decision on the grounds that the human rights basis was so specious that it did not even merit consideration. But that could hardly be the case, especially since both Ms Diatta and the Commission pleaded it. Even if the Advocate General and the Court thought that the argument was specious, they should have addressed it.

I believe that they fell into a trap because of the way the Commission construed its argument. The Commission overstated their argument by stating that the right of the spouse to rest was automatic and absolute once she [or he] entered in conformity with the conditions set in Article 10 of the Regulation.

My view is that the correct construction would be to say that the spouse may not be expelled if such expulsion would compromise her or his fundamental human rights to be examined - according to the appropriate repartition of role by the ECJ and national courts - under the standards of Community law. In some cases (fictious marriage, very short sojourn) the result may be that expulsion does not compromise fundamental human rights. But simply to construe the Regulation in accordance with the wishes of the Community legislator is not what judicial protection of human rights is all about.

There is a second line of reasoning which rests on the rationale of free movement of workers.

The primary rationale and purpose of Article 48 EEC and the implementing legislation is to ensure free movement of workers as one of the factors of production in the Common Market. If a worker cannot be joined by his or her family, this reasoning goes, this worker's right to free movement will be affected negatively. It is probably still the case that most people like to live with their family and not being able to do so will affect their willingness and ability to move. The Court has gone a long way to give effect to this type of reasoning in order to ensure that the free movement provisions are truly effective.⁶⁵

Let us assume a situation (still the more common) of the husband being the migrant worker wishing to move from one Member State to another. One can take of course the old fashioned view of family relations, that the woman, especially if she does `not work' (meaning of course that she toils in the home) will blindly follow her husband and that the only issue is whether he will have a right to bring her with him. I do not think that the Court of Justice in its jurisprudence should base its reasoning on that implicit assumption. The modern way, which is becoming increasingly more realistic, is that the wife will have an autonomous and maybe even decisive say in this type of family decision. (The situation is even more evidently so in a situation where the woman is the putative primary migrant. In a better world the gender difference would not matter in this type of situation.) She will be affected by the knowledge that if she agreed to move, relocate, re-establish herself etc. and adopt, so to speak, a new country, she might nonetheless find herself expelled from her new country (unless she falls under some other Community measure) simply because her marriage broke down. This knowledge would act as deterrence on the free movement provisions of the Treaty. To interpret Regulation 1612/68 in the 1990s, as did the Court, would, thus, defeat its primary purpose and that of the Treaty itself. It would act as an impediment to truly effective free movement.

From the perspective of positive Community law, this construct has an appeal since it falls squarely within a jurisprudence which interprets relevant Community law so as to give maximum effect to the fundamental principle of free movement. The essential problem of the Diatta situation was, after all, the following: Diatta derived her right of entry and right to stay in the Community from her matrimonial relationship with a Community national. Once that relationship dissolved, her rights under Community law must, it could seem, dissolve as well.⁶⁶ This indeed was, it would appear, the implicit assumption under which the Advocate General and the Court operated. Under this perspective, unless the Legislator gave Diatta an independent positive right, the Court could not act. But, by showing that the construct adopted by the Court conflicts with the principle of free movement, the case can become a different type of Casagrande, enabling an interpretation which affirmed free movement rather than restricted it.

One could, perhaps, rest the argument here.

But in a deep sense this approach, which would actually expand the protection afforded the spouse of the migrant, is profoundly contradictory from a human rights perspective. It views the spouse not as an individual and as an end in itself, the fundamental rights of whom must be protected because of his or her humaneness, but rather as an instrumentality, a means to ensure the economic goal of free movement of all factors of production. Diatta does indeed derive her right of entry and stay from her matrimonial relationship to a Community national. Further, under this classical understanding, strictly speaking, the right does not attach to Diatta at all. It is a right which her husband has, a right to be joined by his wife. And this right is given to him so as to ensure that his free movement in the Community is not obstructed and that the overall benefits from free movement to the polity as a whole are not compromised. Diatta becomes reified: she is a `thing' which serves the purpose of ensuring free movement. That is why she is accepted. Once she ceases to serve in this function, she no longer belongs.

Perceiving this contradiction enables us to recast the human rights argument in this case in a new way which brings us full circle back to Hermann Cohen's Neo-Kantian sensibilities.

The Court should, of course, acknowledge and accept the derivative, instrumentalist logic on which Diatta's original right to enter and stay is based. But it should also, in my view, refuse to base its jurisprudence exclusively on that basis and it should also refuse to construe any provision of Community law which involves real individuals exclusively on that basis. Article 1 of the European Parliament Declaration of Fundamental Rights and Freedoms, which according to its preamble gives expression to the acquis communautaire, provides that human dignity shall be inviolable. There is an inevitable violation of human dignity in a legal construct which insists on seeing an individual not as an end itself, but solely as a means and instrument at the service of other persons and other goals.

Diatta may have come under the canopy of Community law derivatively. It is useful for the Community to extend to her (or her spouse) the right of entry and stay within the Member States since that guarantees effective free movement which, in turn, contributes to the overarching goals of the Community. But, I am suggesting, in no situation can she be stripped of her humaneness. And it is that humaneness which guarantees her own fundamental human rights. Under Community law she must be accepted not simply as a means to ensure free movement but as a person, a universe unto itself. Once an individual, for whatever reason or on whatever basis, comes within the field of application of Community law, his or her fundamental human rights must be guaranteed. For the Court to say that at the moment of her divorce she does not only lose her derivative rights under Community law (which is acceptable), but also protection of fundamental human rights, is to strip her of that humaneness. It is to acknowledge that under Community law she is a mere instrumentality.

It is important to note once more that there is a difference of content between the derivative rights which Diatta would lose at the moment of her divorce and her right to protection of fundamental human rights which must persist. If her derivative right were to continue Diatta would have an automatic entitlement to continue living in the Community. The human rights canopy does not bestow such an automatic entitlement. One can imagine circumstances where, after scrutiny, expulsion would not be considered a violation of human rights depending on the circumstances. But each individual must be entitled to such scrutiny. That judicial scrutiny, whatever its outcome in the individual case, would be the affirmation of the humaneness of the individual, treated as subject rather than object. To return to Hermann Cohen, in the alien one discovers the idea of humanity.

54 Diatta supra note 19, at recitals 17 and 18.

55 Ibid., at recital 20.

56 Ibid., at recital 21.

57 See Oliver, `Non-EC Nationals and the Treaty of Rome', Yearbook of European Law (1985 ) 66.

58 Diatta supra note 19, at para. 8 of the Opinion of the Advocate General.

59 Ibid.

60 Ibid., at para. 9.

61 Diatta supra note 19, at recital 22.

62 Ibid., at page 585.

63 This point is what differentiates the Community spouse from the non-EC spouse. In similar circumstances the former will almost always have an independent personal right to stay qua Member State worker.

64 Declaration of Fundamental Rights and Freedoms of the European Parliament: Article 1: Human dignity shall be inviolable. Article 6(1) Everyone shall have the right to respect and protection for their identity.

65 See, e.g., Case 9/74, Casagrande, [1974] ECR 773 in which the Court, employing this principle, allowed the Community legislator to encroach on the education provisions of one of the Member States.

66 One could express the same idea by saying that Diatta comes within the canopy of judicial protection of the Court of Justice by virtue of her matrimonial relationship to a Community national, and that once that relationship is dissolved, the Court loses its jurisdiction over her.

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