‘the Calais jungle’

The Calais “Jungle”

Robert Curtis
http://www.staffs.ac.uk/staff/profiles/rwc1.jsp

Background

Many illegal immigrants into the EU have congregated around Calais in an endeavour to get to the UK (or “England” as everyone conveniently calls it). This has caused great distress to the people of Calais – some 8,000 people living in unsanitary conditions right on their doorstep. It also causes real problems to those trading between France and the UK, and of course to holidaymakers who do not want to run the gauntlet in order to get to their destinations. Many businesses in Calais have closed or re-located, and visitors now use other ports to get to either France or through to the UK.

The French and British agreed a protocol called the Le Touquet Treaty in 2003. This was completely independent of the EU. It allows UK border officials to be located in Calais in order to carry out border checks more conveniently – this arrangement suits both countries as it eases trade and provides a small relief for genuine refugees.

Brexit

The decision of the UK to leave the EU has no effect on this arrangement – though of course it has been used as a bargaining chip by vociferous French politicians who have recently claimed that if the UK is leaving the EU, then the border will effectively have to move to Dover and the Jungle residents would set up camp here in the UK. This is, of course, both completely spurious and impractical as France would have to “encourage” or “allow” the Jungle residents to come here, and the UK would, as they are illegal immigrants, be perfectly entitled to send them straight back for processing.

France often states that the immigrants are trying to get to the UK so essentially they are the UK’s problem. This is not a true reflection of the legal position but it is a powerful emotive argument to use for French consumption.

The new Home Secretary, Amber Rudd, and her counterpart in France, Bernard Cazeneuve, have ordered a fresh review of security in Calais and confirmed they will continue with the treaty under which British border checks are carried out on French soil, confirming the position that the treaty is not affected by Brexit.

The Law

If we go back to the two main principles which cover this type of situation as set out by the UNHCR and the Dublin Regulation within the EU, the legal position is quite clear. Refugees are defined under the Refugee Convention – and I will leave it to you to decide whether the majority of the residents of the Jungle are in fact fleeing a country where they are in danger of their lives, or merely looking for a better life elsewhere. Either way they are currently illegal immigrants and under the Dublin Regulation, adopted in 2003 by the EU, their asylum application should be examined by the state where the asylum seeker first entered the EU. This may be France (many of the residents are of North African origin so may have entered through southern France) or another country such as Greece or Italy. What is very clear is that they have not entered through the UK, so are not the responsibility of the UK authorities.

Current Situation

The French authorities have been under enormous pressure from the residents of Calais town, and the local council, to find a definitive solution to the problem, and they recognise that to try to offload the residents of the Jungle to the UK is not only against the law but would also encourage thousands of new migrants to come to Calais for the final leg of their intended journey to England. This would exacerbate, not ease, the problem. So the French have decided to bulldoze the camp and transport the residents to other parts of France (though not in that order….). These are the scenes we are seeing today with buses taking the residents away from the jungle.

Moral Obligations

Let us not forget the moral obligations of developed and rich countries in respect of migrants (either genuine refugees or economic migrants) to house at least some of them. This is the basis of the argument currently raging in the UK whereby we have agreed to take a number of unaccompanied children but their ages are suspect and many are considered to be well over 20. Many commentators are also suggesting that the “unaccompanied children” label will only encourage families to send their children on a dangerous journey across Europe in the hope of the UK taking them and then the rest of the family joining later on.

Has bull-dozing resolved the issue?

Not really. EU migration policy is a real mess, as we saw a little while ago. There is no security of the border, and no agreement as to what to do with the people already here and continuing to arrive. The Schengen Agreement is not being followed (with birders going up and checks being made), nor the Dublin Regulation (migrants are being transited through countries, not processed), and talk of quotas runs completely contrary to the idea of free movement. Policy (if it can be said to be that) is in disarray, and is essentially being adopted differently by different countries in mainland Europe to suit their own circumstances and demands of their populations.

I may be very cynical here, but I am asking the question “why has France chosen to act so decisively and so soon after the Brexit vote?”. The country has adopted a very different stance for the last 10 years, yet now chooses to send the residents of the Jungle to other parts of the country. Could it possibly be that they will quietly be given French citizenship away from the glare of publicity, i.e. in small rural areas of France rather than in Calais, which would allow them to come to the UK as EU citizens? The speed of the French reaction gives them about 2 years to bestow citizenship on the Jungle residents which is ample time, and it won’t be done with anyone watching, or in large numbers. It would effectively solve the problem from the French point of view, and the residents would simply “disappear” in the UK when they arrived so there is no chance of them returning to French soil. I hope I’m wrong…..

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The EU Referendum part 2.

Robert Curtis

Part II – The Legal Position after the Vote
I will mainly be talking about the legal position, and not getting too far involved in political, economic or social debates about the effects on a particular sector, or our relationship in general if we decide to leave the EU – or indeed our new relationship if we remain. I do use a couple of current examples to illustrate the hyperbole that’s built up on both sides – but the examples are not trying to influence the debate or the ways people may vote.

1. Vote Remain.

Friday June 24th 2016 – the country wakes to the news that 52% of those eligible to vote have decided that the UK should remain part of the EU. Big sigh of relief from Prime Minister David Cameron and all who backed the Remain campaign. So we all go about our business as usual and nothing changes….

….but then we start to realise that we haven’t voted for the status quo, we’ve voted for “fundamental reform” of the EU, or at least a very different relationship within the EU. Let’s briefly remind ourselves of the 4 key principles which formed the basis of the vote. Yes, I know there are five below, but the last two were originally together, and I think they are fundamentally different.
• Protecting the single market for those outside the Eurozone:
• Writing competitiveness into the DNA of the whole European Union
• Exempting Britain from an ‘ever closer union’
• Tackling abuses of the right to free movement
• Enabling us to control migration
Of course it’s still debatable what all these actually mean, and they are subject to a great deal of interpretation. However, let’s take them at face value and assume they are to become the basis of new treaties in the fullness of time. The Government would, I am sure, prefer to forget the whole thing and simply say “we voted to stay in” but some clever lawyer might actually say “no – had we not had these 4 (or 5) principles in front of us we may have voted otherwise”. We weren’t asked whether we wished to have the same relationship with the EU but one that would be fundamentally different.

So let’s just think through what would happen. Firstly the European Parliament has given itself the authority to validate (or otherwise) the agreement. Just a little diversion here… I know you know there are actually 4 presidencies within the EU, but I can guarantee that only a very few people outside the university know that. Fewer could name them, and fewer still could say what their particular remit is, or where their authority derives from. Law students at Staffordshire University won’t have any problems here, of course, but for anyone else reading this, below are the 4 presidents.

• President of the European Council. Donald Tusk. He has been in charge of the negotiations to date.
• President of the European Commission. Jean-Claude Junker
• Presidency of the Council of the European Union. Currently held by the Netherlands
• President of the European Parliament. Martin Schultz.

You can find out what they do and the composition of the bodies they represent from the link below. You might like to ask yourself how many of them have been elected as “president” and what is the relationship between them, and between each and relevant leaders of each participating country – but that’s for another time.

http://europa.eu/about-eu/basic-information/eu-presidents/index_en.htm

Back to the main agenda. The European Parliament could ratify the agreement as it stands – in which case the various terms and conditions would (in time) come into effect. There would be no immediate changes but as the treaties were altered the various provisions would be incorporated, and until that time the parties would (hopefully) honour the spirit of the agreement. However, treaty change requires the consent of all 28 members – and one wonders how likely the other 27 are to agree to incorporate all the provisions. Remember that David Cameron has stated that we get the best of both worlds – we gain a competitive advantage over our friends by opting out of the bits we don’t agree with. How likely is it that every single country will agree to us having that advantage set in stone for ever….? It’s also an interesting point to consider what would happen if, say in 5 or 10 years when the treaties come up for renewal, there were a government in the UK other than a Conservative one. It may well be that the competitive advantage written into the agreement would be unpalatable for another political party (and they have argued strongly against many of the negotiating points adopted by the current government) so we could actually veto the agreement ourselves….. Either way, if another country vetoed it, or we did so ourselves, there would be no changes at all to the current relationship and all David Cameron’s “tough negotiation” would be to no avail. Perhaps he actually already knows this, so it didn’t really matter what was written into any agreement – it would never come into force.

This is quite an interesting point from the legal perspective (though I guess by that time not many people would be bothered by the legal niceties) in that the vote to stay in was based on “fundamental change” or at least a fundamentally changed relationship, so if the provisions underpinning that change are not enacted in European law, do we get another vote, this time “in” or “out” based on the status quo rather than on a potential future changed position? Somehow I doubt it, and the government of the day (of whatever perspective) would simply say that this was an “in or out” referendum, once in a lifetime, and you chose “in”. That’s why several commentators have suggested we wait until the agreement has been ratified by the European Parliament (though of course not enacted in Treaty change as that would take too long) before having the vote. And that’s why you can understand David Cameron’s desire to get it out of the way as quickly as possible, because if the European Parliament said “no” then we’d have to go back to the negotiating table.

The scenario of other countries not accepting any treaty change is very real, and not some theoretical construct. The basis of the agreement is flexibility or “special considerations” which would then create expectations in other counties. The Financial Times on February 22nd 2016 puts it very eloquently “By transforming the right for a state to leave the EU into the right to blackmail partners with the threat of leaving, Mr Cameron has opened Pandora’s box.”

2. Vote Leave.

Friday June 24th 2016 – the country wakes to the news that 52% of those eligible to vote have decided that the UK should leave the EU. Does David Cameron resign in shame and embarrassment? Does Boris Johnson mount his challenge to become Prime Minister? Let’s leave these questions to the politicians and concentrate on the legal framework.

Firstly, let us remind ourselves of the commitment made in the Conservative Party manifesto before the election in 2015 “We will honour the result of the referendum, whatever the outcome.” Similarly, in early discussions surrounding the debate when the date was announced, there was talk of the referendum leading to a second vote on different terms. Let us assume that this will not happen – and the government has been very clear that the result is binding for a generation. So essentially we wake up to the UK leaving the EU. This blog discusses how that would happen. Remember that a lot of rhetoric has been given by both sides of the debate – on the one hand that it would take 10 years to get any decisions at all (well, that would be a fast turn-around compared to most EU negotiations….!) and on the other that there would be no problems or difficulties in extricating the UK from the EU – clearly there would, and these problems would have to be addressed practically.

I am sure you have come across reference to “Article 50” and whether or not (or how soon) it would be invoked. The principal provisions of Article 50 are copied below – you can find a link to the full Lisbon Treaty at the end, but this is one time I’d suggest NOT reading the whole thing – the “reader-friendly” version runs to 384 pages.

The language of Article 50 is quite straightforward but as always, the devil is in the detail of how it would work in practice – which is a very interesting discussion as no-one has ever invoked article 50 so it would be setting precedents all over the place, and we’d all be genuinely navigating in unchartered waters.

“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

This is the basic statement – but I would like to alert you to the fact that there is no provision for a state to be excluded from the club. So all the talk of Greece being forced out in 2014 and last year was really so much hot air – only Greece could have decided to leave, no other country or group of countries, nor any of the EU institutions, could have forced them to do so.

“2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be………concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.”

“3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

“4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.”

So (for once) the language is quite straightforward and clear. Once Article 50 is invoked there is a two year negotiating period during which time a date for final withdrawal is agreed. In that two-year period nothing changes and all the same rules apply, but there is a change in the negotiation position between the country leaving and those remaining, as paragraph 4 makes clear that the country leaving will not take part in the discussions of the Council about its leaving. This is pretty obvious but has been erroneously misinterpreted by some to mean that the country leaving would be unable to take part in any negotiations. That is not the case, just that (as would be expected) the country leaving can’t sit on both sides of the table at the same time.

This two-year period is where the detailed negotiation of the type of relationship the country would have with the EU talks place, and covers a range of interesting topics that have been put before the public already in the referendum debate (though one has to say with rather more emotion and divergence from reality than we could have expected). These topics would include our relationship regarding trade, whether we still allow free movement of people from the EU, cross-border security and information sharing, the position of those already resident in each other’s countries, health-care arrangements for those travelling etc…

I know I said I would steer clear of politics and opinion, but I’d just like to burst a couple of bubbles – one on each side of the debate – which are, in my opinion, quite far from reality.

Firstly let’s explode the myth that we wouldn’t be able to trade with the EU after leaving. Put simply, there are many countries that actually trade successfully with the EU without being part of the EU – in fact some 120 of them….. Of course there are difficulties with trading with another trading bloc but actually this happens all the time. The EU is not the only trading bloc in the world, but one of about 8. I am not suggesting that the detailed rules and regulations are not complex and often cause difficulties, but let’s take one small but very important recent example – steel. China is not part of the EU and actually doesn’t have a trading agreement with the EU yet is able to export its steel to EU countries very successfully. To quote from the EU’s own website (links at the end of the text). “The European Union and China are two of the biggest traders in the world. China is now the EU’s 2nd trading partner behind the United States and the EU is China’s biggest trading partner. The EU is committed to open trading relations with China”. So how is it that there are no trade agreements, yet trade occurs, and not only occurs, but is spectacularly large? Well, obviously, you’ve been brainwashed by the “in” campaign into thinking that as soon as we leave then we cease to trade, but that is demonstrably not the case. Many countries in Asia, South America, North America all export cars, electronic goods, clothing, food, fashion items etc… to the EU (and import them from the EU) but without a trade agreement. There would of course be changes, and these would mainly affect those currently trading (hence their reluctance to change) but trade would continue, and with it the creation of jobs in both the trading partners. Likewise, the issue of meeting standards of those imposed by another trading bloc has caused people to think “let’s not rock the boat”. But we already do meet these standards and would have to continue to do so for each and every country (or trading bloc) that we exported to. We import from the US, and we export to the US. The US has different standards to the EU – so we have to meet those standards (as we do). And remember, again, there is no trade deal with the US. As the EU website says “The EU is negotiating an ambitious and balanced trade and investment deal with the US.” (full text in link at the end). So although there would be negotiations (which actually go on all the time between different trading partners) nothing substantial would change in reality.

Secondly let’s turn our fire against the story that is commonly told by the “out” campaign about immigration being the fault of the EU and that we would gain control of the numbers of migrants. Whilst there is truth in the fact that we would be free to set our own limits on immigration, in reality we do have control of the immigration from non-EU countries but choose not to exercise it. In 2015 there were approximately 350,000 migrants coming to this country on a net basis. That is, 600,000 people came in but 250,000 left. Of those 350,000 how many were from the EU? Only 170,000. So a further 180,000 came from other countries where we do indeed have the right to control the numbers. Why would this change much if we left the EU? We wouldn’t suddenly stop many of the current 170,000 EU citizens as the vast majority are key to our economic growth. Many of these people share similar cultural and historical backgrounds and have proven that they are keen to work and to contribute to society. Talk of “benefits tourists” is a tiny sideshow. Even if we were to reduce the 170,000 by (say) 50%, there would still be 180,000 from outside the EU who would enter – based on current trends and willingness of the UK government to act. Mr Cameron stated that he wanted to reduce net migration to “the tens of thousands” per year. He has spectacularly failed, admitting nearly double his maximum target with immigrants from the category the country does indeed control. Why would leaving the EU change any of that…?

These are not arguments for or against staying in the EU, but I just wanted to use them as illustrations of the need to undertake rigorous research into each and every area of discussion, and to form your own opinion based on the facts, not on the rhetoric which is often somewhat divorced from reality.

Anyway, as one correspondent has written, it doesn’t matter which way we vote, as the fact of having a referendum has given us a golden opportunity. The “in” camp say we will be infinitely better off if we stay, the “out” camp say we will be infinitely better off if we leave. So whichever way we vote, it looks like we’ll have a wonderful future….!

http://ec.europa.eu/trade/policy/countries-and-regions/countries/china/

http://ec.europa.eu/priorities/balanced-eu-us-free-trade-agreement_en

http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html

Robert Curtis April 2016. robert.curtis@staffs.ac.uk