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EU High Court Parses Laws for Immigrants

(CN) - On the same day Europe's highest court upheld a France law that denies re-entry to people who have EU temporary residence permits but not visas, it told the Netherlands to stop setting residency restrictions on student financial aid.

L'Association nationale d'assistance aux frontières pour les étrangers (L'Anafe), a collective of civic groups and unions that assists foreigners with legal immigration assistance, asked a French court to annul a law denying the re-entry into France of third-country nationals who have temporary residence permits but not visas. L'Anafe said the law breached EU principles of legal certainty and the protection of legitimate expectations.

The French court referred the case to the Court of Justice for the European Union with doubts as to the interpretation of the EU's Schengen Borders Code, which created Europe as an entity without internal borders. The EU high court said Thursday that temporary residence permits are expressly exclude the benefits of permanent residence permits, which allow third-country nationals to enter and move freely throughout the European Union.

"Since that regulation dispensed with checks on persons at internal borders and moved border controls to the external borders of the Schengen area, its provisions on refusal of entry at external borders are in principle applicable to all cross-border movements by persons, even if the entry via the Schengen area external borders of one member state is made only for the purposes of a stay in that member state," the ruling states. "The fact that a third-country national attempts, on the basis of a temporary residence permit issued by one member state, to return into that member state by an external border of the Schengen area, but does not intend to seek access to the entire Schengen area, therefore does not preclude the application of [the Schengen Border Code]."

A third-country national who leaves a member state carrying only a temporary residence permit cannot return there on the strength of that document alone, the court held. Border control authorities must refuse the individual entry into the territory unless there are limited extenuating circumstances, like humanitarian grounds or international obligations, the justices added.

Any person holding a valid re-entry visa from another member state must be allowed entrance to another state for transit purposes to reach the country that issued the visa, the decision states.

Though the court seemed to agree with tighter residency requirements for France, it voted the same day to strike down a Dutch law that requires recipients of studies-abroad funding to have resided in the Netherlands for at least three of the six years preceding enrollment.

The court said this restriction creates unequal treatment between Dutch workers and migrant workers. The European Commission, which brought the action against the Dutch kingdom for failing to comply with EU treaty obligations, called the law indirect discrimination and contrary to legislation guaranteeing the freedom of movement for workers.

The Court of Justice agreed, noting that the Treaty on the Functioning of the European Union also outlaws covert discrimination "which, through the application of other criteria of differentiation, lead in fact to the same result."

Settled case law states that applying different rules from person to person, or the same rule to different situations is discrimination, the court said.

"The non-discretionary application of that principle requires that the criterion by reference to which the situations are compared be based upon factors which are objective and easily identifiable," the decision states. "That criterion cannot be based upon the simple probability that workers employed in the Netherlands but residing in another member state will pursue studies, not in the Netherlands, but in the member state of residence."

"In accepting that children of migrant workers who wish to study in the Netherlands should have access to funding for such studies on the same terms as Netherlands nationals, irrespective of whether or not they reside in the Netherlands, the kingdom of the Netherlands implicitly accepted that at least some children of migrant workers may, like the children of Netherlands workers, be pre-disposed to study in the Netherlands, irrespective of whether or not they reside there," the justices added. "That being so, the kingdom of the Netherlands cannot legitimately assert that the place where the migrant worker or his dependent children will study will be determined, in a quasi-automatic manner, by the place of residence."

The Dutch law creates "an inequality in treatment as regards access to portable funding between, on the one hand, Netherlands workers and, on the other, migrant workers residing in the Netherlands or employed in that member state as frontier workers," according to the Luxembourg court.

"Such an inequality constitutes indirect discrimination which, unless objectively justified, is prohibited under [EU law]," it added. "Yet, even if it were objectively justified, it would still have to be of such a nature as to ensure achievement of the aim pursued and not go beyond what was necessary for that purpose."

The court rejected the Netherlands' arguments that the residency requirement served budget constraints.

"To accept that budgetary concerns may justify a difference in treatment between migrant workers and national workers would imply that the application and the scope of a rule of EU law as fundamental as non-discrimination on grounds of nationality might vary in time and place according to the state of the public finances of member states," the court said.

The Netherlands must immediately repeal the law or face financial penalties and other action by the European Commission.

The French case returns to the national court for final judgment.

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