Saturday, April 9, 2016

Expulsion of Roma (gypsies) from France – A Legal Analysis by Abdul Rehman Yasin (2010)

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