Expulsion
of Roma (gypsies) from France – A Legal Analysis
The “Roma”, also known as
“Gypsies”, have been persecuted across Europe for centuries. Today these Roma
gypsies are facing a new kind of discrimination, unheard of in Europe since the
Second World War. These poor and destitute people are now facing group
evictions from several European states on the basis that they pose a threat to
public order.
Recently, France began its
campaign of expelling all non-French Roma from French lands by, associating the
Roma as a group involved in criminal activity, without any legal process to
determine these individuals guilt. Consequently, declaring the Roma as a threat
to public order; to justify such expulsions. The UN's Committee on the
Elimination of Racial Discrimination sharply criticized France's crackdown,
saying that racism and xenophobia were undergoing a "significant
resurgence".
Article
20 of The Treaty of the Functioning of European Union 2008 (TFEU) confers the status of
citizenship of the European Union (EU) on every person who holds the
nationality of a Member State. However, EU citizenship is additional to, and
does not replace, citizenship of the individual Member States.
However the question here is that;
“is there a right to ‘move and reside freely’ in any Member State for all
citizens of the Union?” Article 21(1)
TFEU 2008 provides “a right to move and reside freely throughout the
territories of the Member States” but this is stated to be “subject to
limitations and conditions laid down in EU Treaties and by the measures adopted
to give them effect”.
The only possible grounds for
expulsion of EU nationals from another EU state are listed in Article 45(3) of TFEU 2008; which
provides three possible grounds for refusing entry to, or expelling, a national
of another Member State: public health, public security or public policy.
However, at the same time courts have interpreted these derogations as strictly
and narrowly as possible, thus keeping aligned with the fundamental right of
free movement.
Currently, there are over 400,000
Roma - or traveling people - living in France, who are part of long-established
communities. In addition, there are about 12,000 Roma from Bulgaria and
Romania, many of whom live in unauthorized camps in urban areas across the
country, according the French-Roma rights umbrella group “National Federation of solidarity
action with Gypsies and Travellers” (FNASAT).
The Roma’s repatriated to Romania
and Bulgaria are legally EU citizens, so they do have the right to move freely to
another EU country. EU Directive 2004/38
on freedom of movement provides procedural and other legal safeguards for the
freedom of movement of EU citizens within EU Member States.
The refusal of entry or expulsion
must comply with the principles of proportionality, and must “be based
exclusively on the personal conduct of the individual concerned” as stated in Article 27(2) of EU Directive 2004/38.
Thus, Member States accordingly may not ban whole categories of people.
Furthermore, the interpretation
of the public policy derogation listed in EU Directive 2004/38 requires Member States to also show that they are
taking similar deterrent measures against their own nationals in similar
circumstances, even if the activity is not illegal.
In case 125/126/81, “Adoui and
Cornuaille v Belgian State” [1982] ECR 1665, the Court said that if
a Member State did not adopt genuine and effective measures to combat an
activity, even if not illegal, it could not justify expulsion of other Member
States’ nationals.
France justifies these expulsions
on the basis that they are stopping criminal activity conducted by the French-Roma,
which is a legitimate government concern. But the expulsion of EU citizens on
the basis of ethnicity as a proxy for criminal activity is also a violation of
EU Directives on racial discrimination.
The question now is that while
Romania and Bulgaria joined the EU in 2007, don't their citizens have freedom
of movement within the EU? Currently they do have the right to enter France
without a visa, but under special rules they must have work or residency
permits if they wish to stay longer than three months.
In addition to this, France and
nine other EU states have similar restrictions in place, typically requiring
work permits. The Romanians and Bulgarian will enjoy full EU citizenship
privileges and freedom of movement within the EU, from January 2014, or seven
years after the two countries' accession.
Meanwhile, EU Justice
Commissioner Viviane Reding has described the deportations as a "disgrace"
and the European Commission has taken steps towards legal action against
France. On 29 September 2010, the Commission told France that it had two weeks
to start implementing EU Directive
2004/58 on Freedom of Movement, which also sets out rules for deportation
cases. France was warned that it would face an official EU "infringement
procedure" if it failed to do so. The EU Commission further required
France to submit documentation and prove that is policy of expulsion of Roma
people was in line with EU rules on free circulation of EU citizens; till 15th
October, 2010.
However
on 20th October, 2010, the European commission decided to halt the
infringement proceedings against France over the expulsion of gypsies. The EU
Justice Commissioner Viviane Reding said "Following
the official commitments made by France, the European Commission will now, for
the time being, not pursue the infringement procedure against France."
The plight of the Roma (gypsies)
is not just a short-term security problem that can be addressed by draconian
measures to move people forcibly from one member state to another. Not only
does this undermine European values and legal principles, but it fails to
address the root causes of the problem. This is a matter of human rights and
basic values, which are vital to peace and cohesion in societies across Europe.
Written By:
Abdul Rehman Yasin
No comments:
Post a Comment