Two months ago, the Irish held a referendum on the Treaty of Lisbon. 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. The Irish have an abortion legislation that doesn't fit in the minds of most liberal journalists. They also thought that the Treaty of Lisbon could liberalize it against their will. That is 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 right: National law is subordinate to whatever is ruled on the European level. As a consequence, the Danish Prime Minister Anders Fogh Rasmussen found himself in trouble: after the ECJ ruling in the Metock case the Danish immigration legislation is now completely void and worthless.
Here is 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 black men who had sought asylum in Ireland. Their application was rejected by Ireland, but in the meantime 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 did not apply because they had not stayed in another EU country before coming to Ireland. However, the European Court of Justice rejected that argument and ruled that the four men should be given a residence permit.
Almost immediately after the ruling, some couples showed up "spontaneously" at the city hall in Copenhagen to demand residence permits for their non-EU spouses. Since 2002, Denmark has greatly restricted the possibilities for immigration, but the ruling in the Metock case brings down the entire Danish immigration legislation. To make things worse, this ruling comes on top of a small scandal that emerged last month in Denmark, when it became known that candidate immigrants had not always been fully informed by the immigration officers about all their rights and possibilities to enter the country and obtain residence permits.
But let us 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 considerable numbers of immigrants who do not always fit in seamlessly with the rest of its population. Forced marriages at a very young age with cousins or nieces from the home country, who depend on social welfare programs for years once they have moved to Denmark, were unfortunately all too common. To tackle this problem the Danish government introduced a few conditions into its immigration legislation. Not much is left of these conditions now. Even the Indvandringsprøve (Immigration test) that was planned for 2009, and that can be compared to the German Einbürgerungstest for immigrants, now comes into question.
- 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 ECJ removes this condition.
- 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 by the ECJ to a period of just a couple of weeks.
- 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 European Court of Justice.
- Moreover, the EU 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. It suffices to spend one's honeymoon on the other side of the Øresund in the Swedish town of Malmö doing some simple job – cashier at a supermarket or taxi driver will do – and one may import one's bride or groom into Denmark.
The European Commission is very excited about the Metock case ruling. However, the ruling caused quite a stir on the right of the Danish political spectrum. Pia Kjærsgaard of the Danish People's Party (Dansk Folkeparti, DF) said the government should simply ignore the ruling from the European Court of Justice. Prime Minister Anders Fogh Rasmussen of the Liberal Party (Venstre) replied that the Danish People's Party should 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 in the long term it would lead to chaotic situations in the EU. It should be noted that Anders Fogh Rasmussen's conservative minority government usually relies on the Danish People's Party for its majority in parliament.
But what do the people in the street think? 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 ruling. 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 has 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.
That is the core of the problem: the rules for the free movement of workers were not detailed enough, thus giving the judges of the European Court of Justice the possibility to interpret them as broadly as they liked. This also means that when the Danish politicians promised their voters that Denmark was not giving up its sovereignty by joining the European Union and then implementing a whole series of treaties, 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 will not be next in turn to be brought down by some European judges?
Moreover, the U-turn which Maria Wetterstrand of the Swedish Green Party (Miljöpartiet de Gröna) did earlier this year is illustrative. Officially the Green Party still wants Sweden to withdraw from the European Union, but Wetterstrand says she has personally come to the conclusion that Swedish EU membership is not bad after all. The reason? The way one can work with environmental issues in the EU, and that the EU is not afraid to use all the means at its disposal to force solutions upon on its member states.