A UK court is required to determine whether the legal provisions of EU law have direct effect. If it has a direct effect, it can be relied upon directly by or against the party, thus, prevailing over any inconsistent national law. In the given case scenario, the European Parliament created Directive Non 2015/224 that required the Member states to undertake reasonable measures for accommodating minors seeking for asylums. UK being a member state was supposed to bring the directive into force within 1 October 2017.
In order to implement this directive, the UK passed a new statutory instrument SI 57/2017. Here, as per the EU law, ‘minor’ refers to every human being below the age of 18 years and an ‘unaccompanied minor’ is a person under 18 years old and is separated from both parents. On the contrary, under the SI passed by UK, minors under 14 years are entitled to additional safeguards such as they shall not be detained and placed into adult facilities, should be entitled to guardianship and should be reunited with their families.
The issue that arises under the given scenario is whether the directive issued by the EU law is binding upon UK. On the facts here, Rina being 15 years old has been seeing asylum in UK and has been identified as unaccompanied minor who has been brought to an adult facility. Despite the definition provided under the EU directive that any person below 18 is a minor who is entitled to additional safeguards as per UK SI, the UK Home Office have rejected such requests. Rina has been denied the additional safeguards on the ground that she is not below 14 and as per the UK SI, children below 14 only are entitled to guardianship and are not held in adult facilities.
As mentioned earlier, if a relevant piece of EU law has direct effect it will override any national law that is inconsistent with the national law. However, a piece of EU Law has a direct effect if such law is:
The UK courts are entitled to seek for guidance before the European Court of Justice (ECJ) in the event of any issue pertaining to EU Laws. The Citizens of the Member States may also rely on the EU law under circumstances where the national law contradicts with the EU law.
Now, Directives are not enforceable in member states directly but have a binding effect after they are enforced by the member states. The member states are provided with instructions and a stipulated period within which such EU Directives are to be implemented. However, the method in which member states can implement the Directives is upon the states as this way, EU law shall be in harmonization with the EU Law. In Pubblico Ministero v Ratti [1979], it was held that a Directive had a direct effect and shall be implemented after the expiry date of implementation.
Although Directives were not originally considered to be binding before the member states implemented them, however, the emergence of the doctrine of direct effect by the CJEU has developed the direct binding effect of the directives on the individuals of the Member states. The directives shall be directly enforceable upon the individuals under circumstances where such directives have been badly implemented or have not been implemented within the stipulated time. The direct effect of the EU directives has been established in the landmark case decided by the European Court of Justice (CJEU) in Van Gend en Loos v Nederlandse Administratie der Belastingen [1963]; [1970]. In Defrenne bv Sabena [1974], CJEU decided there were two types of direct effect:
Vertical direct effect- this is concerned about the relationship between national law and EU law in particular, an obligation of a state to ensure that the national laws complies with and are consistent with the EU laws.
Horizontal direct effect- this deals with the relationship between the citizens and in particular, the ability of the citizen to enforce some of the EU legal provisions in any legal proceeding brought against another citizen.
Directives issued by the EU law are usually horizontally directly effective as was mentioned in the CJEU case of M.H. Marshall v Southampton & South-West Hampshire Area Health Authority. Further, in another CJEU case Van Duyn v Home Office [1975] it was established that directives are not effective horizontally.
In order for national courts to implement EU Law, it is important that the legal provisions of EU law be construed in a manner it achieves the desired result and is not inconsistent with EU law. The national courts are entitled to seek guidance from the European Court of Justice so that it provides a ruling with respect to the fact if the secondary legislation is valid. The doctrine of ‘direct effect’ is perceived as a judicial development of the European Court of Justice. This doctrine is fundamental as it ensures enforcement and application of EU Law in the national courts. A direct effect is a remedy through which one can assess whether a law is enforceable by and applicable to citizens.
However, Directives have obstacles that impede the implementation of the Directives; they are not considered as precise and clear to be directly effective. In the landmark case of Van Duyn v The Home Office, the EC held that a Directive could be directly effective against the state provided the obligations stipulated under Directive were clear enough for it to be justifiable if implemented by the Member States. As mentioned earlier that EU laws are not directly enforceable against private individuals or bodies, the UK Courts are required to adopt a ‘purposive’ approach while interpreting the EU legislation and must ensure that UK laws are consistent with the EU laws.
In other words, while applying the ‘purposive approach’ to interpret the EU legislation, it is presumed that UK Parliament intends to comply with such legislations with the relevant directive. Although the judiciary is at liberty to bring this presumption to effect even if it implies change in the natural meaning of the words but it must not change the purpose of the legislation.
Indirect effect of EU law is more than a duty. In Adeneler [2006], it was established that his duty is applicable during the implementation of the Directive or the transposition period, which prevents Member States from undertaking measures, that is inconsistent with the Directive during such period. It also prevents nations from construing existing national law in accordance with the directive that has not been implemented. Since the Directives are set of instructions, they cannot be said to be enforceable by one citizen against the other citizens. However, there are bodies that though are private organizations but are subjected under the control of the state and operate certain special powers.
In Foster v British Gas, the court ruled the criteria that were used to determine whether a body was sufficiently under the control of a state to be allowed to use vertical direct effect as a remedy against it. In order to compensate for the lack of horizontal effect, the criteria stipulated in the Foster case expanded the scope of the word ‘State’ for permitting a state to use vertical direct effect as a remedy against it. Further, in Von Colson’s case the court laid down the principle that national law is construed as close as consistent with the EU law.
The principle laid down in the said case served two purposes. Firstly, the application of this rule would demonstrate the intended result, which the Directive wanted to achieve. Secondly, it would give the courts the opportunity to determine whether the date of implementation of the EU Directive passed or whether the directive should be effective in the horizontally direct way. This is known as the ‘indirect effect’. It mainly refers to the concept that if a Member State has failed to develop laws within the state that demonstrates the intention of the Directive or is consistent with the purpose of the EU Directive, then a remedy is applicable. Every Member State is obligated to ensure that every author including courts are obliged and bound by the rules set out in the Directive. Even the domestic courts must ensure to construe laws in a manner that demonstrates the intention of the EU Directives.
The horizontal direct effect of the EU Directives can be achieved through the non-application of the national law. This measure is evident from the case of CIA Security CIA Security v Signalson and Securitel (1996) where A Belgian legislation that did not comply or was inconsistent with the EU Directives was disallowed and was not relied on which ultimately led to the application of the EU Directive through Horizontal direct effect.
Where any unaccompanied child makes an asylum application, the tribunal must consider the best interests of the child. The decision should be made based on the presumption that the child is a minor. In Rahimi v Greece, the minor arrived alone seeking for asylum and was held in detention who was being subjected to inadequate care. The ECtHR appointed a guardian to the minor applicant.
Further, in R (Sudanese) v Secretary of State for the Home Department [2017], entered into UK in 2014 that was an unaccompanied minor seeking for asylum in the country. He claimed to be 17 years old but an uncertain date of birth placed him to be of 18 years of old. He was held in detention later. On release from detention, fresh directions were passed and he was further detained. After the age, assessment of the applicant conducted by a local authority who concluded that the applicant was about 16 years old, hence an unaccompanied minor. The judge concluded stating that such detention was illegal as he was an unaccompanied minor.
In Rewe [1976], the issue involved was whether the EU provisions were binding and were directly effective. It further dealt with the issue how such effectiveness of the EU directives was to be enforced in national courts. In the EU decision, it was held that where the EU law on individuals confers rights, the national courts are obligated to safeguard such rights of the individuals. Member States must have remedies available to be enforceable under EU law, as national law is enforceable.
Although directives passed under EU law usually have horizontal effect between private parties but if any party suffers a loss due to non-compliance of the Member States with the EU law, which also includes non-implementation of the EU Directives, the Member States shall be liable for such loss under the principle of state liability. This principle was established for the first time in the case of Francovich v Italy (1991).
In the given case, the Directive passed by the EU was clear about the definition of a minor and an unaccompanied minor. The Directive stated that any person who is below 18 years of age is a minor whereas any person who is below 18 years of age and is separated from both the parents shall be termed as unaccompanied minor.
Here, the transposition period of the EU Directive was about to expire after 1 October 2017. As mentioned above, the EU directives are vertically directly effective and not horizontally. In order to implement the EU directive, the UK (Member states) passed a statutory instrument (SI) where children below 14 years seeking for asylum in UK shall be entitled to guardianship and not entitled to detention.
Rina has been accepted as an unaccompanied asylum seeking minor but has been held in adult facility. Despite several applications and requests to transfer her to youth accommodation and appoint a guardian to support vulnerability and needs, the applications has been rejected. The Home Office argued that she is above 14 years and as per the SI, children below 14 should be entitle to guardianship and not held in detention.
Here, it can be said that if a relevant piece of EU law has direct effect it will override any national law that does not comply with the national law. Further, In Pubblico Ministero v Ratti [1979], it was held that a Directive shall be implemented after the expiry date of implementation. In Van Gend Loos case the criteria to the direct effectiveness of the EU Directive was stated. In this case, the Directive passed by EU was clear and precise about the definition of a minor which was any person who is below the age of 18 years. The EU directive was neither conditional nor it subjected the Member State or UK to any obligation.
The stipulation period of the EU Directive to be implemented was 1 October 2017, and Rina applied for asylum as an unaccompanied minor on 10 November before which the SI was passed by UK. This implies that the EU directive was implemented and required its Member State (UK) to construe the provisions in a manner that achieves the desired result intended by the EU Directive. The UK Courts are required to adopt a ‘purposive’ approach while interpreting the EU legislation and must ensure that UK laws are consistent with the EU laws.
If the courts apply the ‘purposive approach’ to interpret the EU legislation, it is presumed that UK Parliament intends to comply with such legislations with the relevant directive. The judiciary is at liberty to bring this presumption to effect even if it implies change in the natural meaning of the words provided it does not change the purpose of the legislation.
Here, the EU Directive stipulated that children below 18 are considered minors and persons below 18 years old who are separated from both the parents are unaccompanied minors. The UK SI complies with the EU Directive and accepts Rina who was 15 years old and arrived at UK alone seeking asylum as an unaccompanied minor. This implies that the purpose of the legislation, which is to determine whether a person arriving in the Member states are minors or unaccompanied minors and undertake adequate measures to serve their needs. Since the judiciary is at liberty to change the natural meaning of the EU Directive it provided additional safeguards for minors below 14 years only which implies that other minors below the age of 18 shall be entitled to additional safeguards thus, depriving other minors like Rina of the additional safeguards. This implies that the UK SI has altered the intention of the EU Directive.
Since, the SI UK was passed to implement the EU Directive, it can be said that the Directive 57/2017 was implemented but inaccurately. This makes the Directive directly effective in the Member states. Therefore, it can be stated that Rina may rely on the EU Directive and bring a legal action before UK court or tribunal on the grounds of state liability as was established in Francovich [1991] for detaining her in adult facilities and depriving her of the additional safeguards that are being granted to minors below 14 years old.
References
1951 Geneva Convention relating to the Status of Refugees
Adeneler [2006] (Case C-212/04)
CIA Security v Signalson and Securitel (1996) C-194/94
Defrenne bv Sabena (Case 2/74) [1974] ECR 631
Dublin Regulation (Regulation No. 604/2013) Article 8(4)
Duyn v The Home Office (1974) C-41/74
Foster v British Gas plc (1990) C-188/89
Francovich v Italy (1991) C-6/90
Jensen, Tine K., et al. “Stressful life experiences and mental health problems among unaccompanied asylum-seeking children.” Clinical child psychology and psychiatry 20.1 (2015): 106-116.
Lazaridis, Gabriella. Security, insecurity and migration in Europe. Routledge, 2016.
M.H. Marshall v Southampton & South-West Hampshire Area Health Authority (Case 152/84)
Nelson, Deborah, Elizabeth Price, and Joanna Zubrzycki. “Critical social work with unaccompanied asylum-seeking young people: Restoring hope, agency and meaning for the client and worker.” International social work 60.3 (2017): 601-613.
Oppedal, Brit, and Thormod Idsoe. “The role of social support in the acculturation and mental health of unaccompanied minor asylum seekers.” Scandinavian journal of psychology56.2 (2015): 203-211.
Pradella, Francesco, Vilma Pinchi, and Giulia Vitale. “EU POLICIES RELATED TO UNACCOMPANIED MINOR ASYLUM SEEKERS’AGE ESTIMATION PROCEDURES: NEW ISSUES.” FORENSIC SCIENCE INTERNATIONAL. Vol. 277. ELSEVIER HOUSE, BROOKVALE PLAZA, EAST PARK SHANNON, CO, CLARE, 00000, IRELAND: ELSEVIER IRELAND LTD, 2017.
Protocol Relating to the Status of Refugees 1967
Pubblico Ministero v Ratti [1979] Case 148/78
R (Sudanese) v Secretary of State for the Home Department [2017] EWCA Civ 138
Rahimi v Greece (Application No. 8687/08)
Rewe [1976] (Case 33/76)
Sauer, Pieter JJ, Alf Nicholson, and David Neubauer. “Age determination in asylum seekers: physicians should not be implicated.” (2016): 299-303.
United Nations Convention on the Rights of the Child 1989
Van Duyn v Home Office (C-41/74) [1975] Ch.358
Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR 1[1970] CMLR 1
Wilding, Jo. “Unaccompanied children seeking asylum in the UK: from centres of concentration to a better holding environment.” International Journal of Refugee Law 29.2 (2017): 270-291.
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