Metock Case Ruling: The Irish Were Right

Two months ago the Irish held a referendum on the Treaty of Lisbon, and we all now know how it ended. One of the elements in the run-up to that referendum was the Irish concern for their abortion laws. Not only are the Irish so old-fashioned that they have an abortion legislation that simply doesn't fit in the mind of most liberal journalists, those islanders were stupid enough to think that the Treaty of Lisbon could liberalize it against their will too. That's why the Irish voted No, some argue, even after so many explicit promises by politicians that there was absolutely no reason to worry. On 26 July, the Court of Justice of the European Communities (Ecj) proved the Irish were right though: national law is subordinate to whatever would be made up on the European level, and as a consequence, the Danish Prime Minister Anders Fogh Rasmussen got himself a huge internal problem this summer: after the ruling in the Metock case, the Danish immigration legislation is in effect completely void and worthless.

Here's a verbatim quote from the press release from the European Court of Justice:

A non-community spouse of a citizen of the Union can move and reside with that citizen in the Union without having previously been lawfully resident in a member state. The right of a national of a non-member country who is a family member of a Union citizen to accompany or join that citizen cannot be made conditional on prior lawful residence in another Member State.

This ruling came after a lawsuit started by four men who had sought asylum in Ireland. Their application was ultimately rejected by Ireland, but in the mean time each of them had married a non-Irish EU citizen, and wanted to appeal to EU law to obtain a residence permit in Ireland. However, the Irish state ruled that the EU law didn't apply because they hadn't stayed in another EU country before coming to Ireland, but the European Court of Justice rejected that argument and ruled the four men should be given a residence permit.

Almost immediately after the ruling was made public, a number of couples showed up «spontaneously» at the city hall in Copenhagen to demand residence permits for their respective non-EU spouses. As the reader probably already knows, Denmark has greatly restricted the possibilities to immigrate to the country since 2002, but the ruling in the Metock case threatens to bring the entire Danish immigration legislation down. To make things worse, this ruling comes on top of a small scandal that came to surface last month, when it became known that candidate immigrants had not always been fully informed about all of their rights and possibilities to enter the country and obtain a residence permit by the Danish immigration officers.

But let's go back for a while to the background of the current –or should I write former?– Danish immigration laws. Just like most other Western European countries, Denmark has a considerable group of immigrants that doesn't exactly always slip in seamlessly with the rest of its population. Forced marriages at a very young age with cousins or nieces from the home country that depend on social welfare programs for years once they've moved to Denmark were unfortunately all too common, hence the Danish government introduced a few concrete conditions into its immigration legislation over the last couple of years to tackle the problem. Not much of these conditions is left now, and even the Indvandringsprøve (Immigration test) that was planned for 2009 and that can be compared to the German Einbürgerungstest, but for immigrants, now comes into question.

For the sake of clarity, the Danish public radio DR summarized the situation like this:

1. Until now, spouses or children who wanted to use family reunification had to have a permanent residence permit in another EU country prior to their arrival to Denmark. The Metock case ruling removes this condition.
2. A Dane who comes back from abroad together with his non-EU spouse had to have been working as an employee or freelancer during his stay abroad. This condition has been reduced to a period of just a couple of weeks.
3. Upon his return to Denmark, the Dane had to be able to support himself and his or her spouse. This condition was already removed in December last year due to the ruling in the Eind case, also delivered by the same European Court of Justice.
4. Moreover, the EU also allows family reunification without having to consider the Danish rules like the minimum age of 24, the presence of stronger ties to Denmark than to the home country of the spouse, good living conditions and sufficient income, financial guarantees and the nephew-niece rule.

In practice all this means that a Danish immigrant now can rely on his European rights to circumvent the entire Danish immigration legislation. To make things clear: it suffices to spend the honeymoon on the other side of the Øresund in the Swedish town of Malmö having some simple job –cashier at a supermarket or taxi driver will do– and that's it: you're ready to import your bride or groom into Denmark.

Needless to say that the Metock case caused quite a stir at the right side of the Danish political spectrum. Pia Kjærsgaard from the Danish People's Party (Dansk Folkeparti, DF) said the government should simply ignore the ruling from the European Court of Justice. The conservative Prime Minister Anders Fogh Rasmussen from the Liberal Party (Venstre) replied that the Danish People's Party should perhaps rather cool down a bit from the recent summer heat. According to him it would be irresponsible to defy the judges of the European Court of Justice, because on a longer term, it would lead to many chaotic situations in the EU. It should be noted that Anders Fogh Rasmussen's minority government usually relies on the oppositional Danish People's Party to get a majority in parliament.

But what do the people in the street think about this? An opinion poll for the newspaper Jyllands-Posten showed that a majority of 57% disagrees with the Prime Minister, and wants to keep the Danish immigration legislation as it is. Only 33% of the people interviewed said they wanted the Danish legislation to be adjusted to the European. These results are in sharp contrast to the results of another poll though, conducted for the business newspaper Børsen , that suggested there is still a solid majority to abolish Denmark's four so-called EU exceptions to the Maastricht Treaty. Anders Fogh Rasmussen now wants to try to solve the problem using diplomacy, and joined forces with nine other EU countries, including Ireland, Finland and Great-Britain, to convince his other European colleagues to detail the rules on the free movement of workers more precisely.

And that's exactly the core of the problem: the rules for the free movement of workers weren't detailed enough, thus giving the judges of the European Court of Justice the possibility to interpret them as broad as they wanted. This also means that when the Danish politicians promised their voters that Denmark wasn't giving up its sovereignty by joining the European Union and then implementing a whole series of treaties and other «non-constitutions», they probably did so in good faith. And to link back to the Irish referendum: if the Danish immigration legislation could be wiped out like this by a simple European Court ruling, who says the Irish or Polish abortion laws won't be next in turn to be brought down by some European judges?

By the way, the U-turn Maria Wetterstrand from the Swedish Green Party (Miljöpartiet de Gröna) did earlier this year is very illustrating. Officially, the Green Party still wants Sweden to withdraw from the European Union, but personally Maria Wetterstrand came to the conclusion that Swedish EU membership isn't so bad at all. The reason? The way one can work with environmental issues in the EU, and that the EU isn't afraid to use all its means at its disposal to force solutions down on its member states. They probably don't need any further explanation with that in Denmark right now.

For those who do need one though: the European Commission seemed to be pretty excited about the Metock case ruling. But why on earth the Irish had to vote No to the Treaty of Lisbon so massively is still a complete mystery to them though.