Analysis of Deportation Law Case - Essay Example

Question One. Introduction. Among many hallmarks of the Maastricht treaty was the unveiling of a de jure citizenship within the European Community (as it was then), that ushered a totally new structure covering the whole continent since the collapse of the Roman Empire1. Ideally, under the new concept, people from the Eastern, Western, Southern and parts of the Northern Europe shared a nexus in a common citizenship status. Lamentably as Derek and his family were to find out, this particular aspect was one of the least discussed until the period running up to the ill-fated referendums to adopt the European Constitution in France and Netherlands a couple of years ago. The point of departure for this paper will be frame the issues that arise from the problem, then a detailed examination of the law applicable to the circumstances and especially the European law in the form of a treaty as well as the available judicial authorities on similar circumstances. Issues. The French authorities wish to deport Derek and his family back to the Britain. Here it will be important to consider the rights of the European Union citizens though before doing that it is perhaps important to consider whether the actions complained of by the French authorities are legally objectionable, or otherwise. Does Derek or his family have the right to stay Is their right independent of each other's Are Derek and his wife to be considered as "workers" Naturally, it is the European Court of Justice (the ICJ) that has severally been called upon to apply its wisdom in cases where a party suspects that his rights have been violated, and those instances will no doubt be crucial in gauging the status of Derek and his family. It may be wise to recite the relevant the full provision here in order to be seized of its full implications. Thus Article 39EC of the Nice treaty provides;2 1. Freedom of movement for workers shall be secured within the Community. 2.. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a)to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. A worker has been defined in the case of Lawrie-Blum V. Land Baden Wurttemberg as a person who for a time performs services for, or under a direction of another person, and receives remuneration in return.3 The ICJ has had to deal with cases where the rights of a migrant were considered. In the instant case, Hartley thinks that Article 39 on the freedom of movement of migrants is restricted in this aspect. A migrant has the right to cross borders once the offer is made before he leaves his country of origin, and as such, such migrant has no right to go to a member country to look for work4. This is premised on the fact that the Article 39 (3) (a) talks of "accepting offers of employment actually made." Thus I my advice to Derek is that his legal position as a migrant is already tenuous as he went to France to look for work. So unfortunately for Derek and his family, French authorities already have some legal ammunition they can use to deport the head of the family. For, Derek, the reprieve could come from a declaration made by the member states and recorded in the minutes meeting way back in 1968 that such migrants who crossed borders into other community member states could be allowed to stay for three months and if they have not been successful in looking for a job5, they were not welcomed anymore and their stay could be brought to an end.6 Derek's case is somewhat analogous with in R V Immigration Appeal Tribunal ex parte Antonissen, 7 where Antonissen, a Belgian national entered UK and was later convicted of drug dealing and imprisoned. On release, the UK government wanted to deport him, but he claimed his rights as a "worker" in the union. The court ruled that any immigrant who has not found work within six months will be required to leave. Thus if Derek had stayed for more than six months, his legal status could be untenable. What about the others Members of a workers family and in this case Derek, are entitled to stay with the worker who is a national of a member state living and working in another member country.8 The family in this context means a spouse and any dependants under the age of 21. Kate and Matthew, both aged below 21 would benefit from this directive. The rights of these groups of people are more defined in a series of regulations and directives that buttress the Treaty. But it has to be remembered that the right of the other members of the family are pegged on the right of Derek to stay in France. The wife does have a severable and independent right to stay on if they live there for three years, courtesy of regulation 1612/ 68. My advice to the family is that unless Derek finds work before six months are over, or that even if the six months are over, he continues to seek employment and has a genuine chance of being engaged, the family stands to be deported. Certainly Derek's conduct of involving himself with illegal activities, if proved will not help. Question two. Introduction. Article 13 of the Amsterdam treaty, the treaty that was the precursor to the current Treaty of Nice provides, was meant to deal with the various forms of discriminations that many immigrants face the world over. It stipulated that "Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred upon it by the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation." This provision forms the basis for other more substantive provisions that will apply to Sonia and Monique. Other than this Article, Article 141 deals with the principle of equal pay for equal work. Directive 75/117 was also adopted to reinforce to implement the principle of equal pay. Issues. Sonia obviously feels shortchanged by the fact that people of the same qualifications are being paid more. The question is whether that would form a basis to say that there has been derogation from the treaty on the principle of non-discrimination. Craig and de Burca think that Article 141 is to protect pay discrimination for work of similar value,9 not qualifications. So there has to be at the very least some form of assessing the value for different jobs. Mostly it is the member states that provide the means of assessment. The locus classicus for discrimination for equal work is Dufrennes V Sabena10, where Ms Dufrennes, an Air Hostess with Sabena, the then glamorous Belgian national Airline sued her employer on the basis that her male colleagues earned more for essentially doing the same work. It was held that Article 141 created individual rights which the national courts must protect, and one of those rights is to ensure the playing field was even for both men and women. And this would be the preliminary point for both Sonia and Monique to rely on for any pay claim that they may prefer against their respective employers. For Sonia and Monique to succeed in a claim for equal work, they will have to find a volunteer of the opposite gender doing a job of equal value but is disproportionately highly paid. Such a person (called a comparator) is fronted on the basis that he is male and is being paid at a higher rate for like work. The courts are not concerned whether the comparator is a good one, because that is to be decided on the facts.11 The ICJ in McCarthays Ltd V. Smith12 made it very clear that such a claim for equal pay should always be based to a real and not a hypothetical Comparator. Sonia's employee uses the fact that male employees retire 5 years later to justify higher pay for them. It is not apparent why the employer should concern himself/or herself with the welfare of the male employees but then turn a blind eye to the female ones. Indeed, if it is a government policy to retire women earlier than men, then that practice itself is discriminatory within the scope of Article 141 of the treaty. Consider the following case. In Garland Vs. British Rail Engineering13, an employer who was not bound to provide special travel facilities for former employees after retirement nevertheless did so, but only for the male employees. He forgot about the female ones. The ICJ struck this down as contrary to the terms of Article 141 (then Article 119) and the conduct was declared discriminatory. In the same light should Sonia's case be seen. Why do the male employees retire later, and why the higher pay This cannot be justified and Sonia has good claim on this ground. Monique is a part-time worker, as opposed to Sonia who is a full time worker. the cases that have come up in the ICJ have a slightly different approach when it comes to part-time workers. The economic objective criteria seem to favour full time workers over their part-time counterparts. Part-time workers are seen as less economical in terms of training, are less willing to work during odd-hours like weekends and evenings.14 In an analogous case of Bilka-Kaufhaus Karin Weber was a part-time worker and challenged Bilker-Kaufhaus pension scheme on the grounds that it required long time service for part-time women and majority of part-time workers were women. It was held that the differential treatment could be permissible if the employer could explain the discrepancy through objectively justifiable factors unrelated to discrimination based on sex. Initially, the onus would be on Monique to prove that the workers in receipt of were predominantly women. The burden then shifts to the employer to justify the discrimination through objectively justifiable factors. A general desire by the employer to have a flexible workforce is not enough to justify discrimination.15 The upshot of the foregoing discussion is that each case has its own merits, but Sonia seems to stand on more solid ground that Monique. If she can get a comparator who earns more and the one who does similar work or work of the same value, and be able to demonstrate that the department which earns more is disproportionately male, and the one that earns less is predominantly female, she has a good cause to institute a pay claim. The employer will be hard pressed to justify the discrepancy in pay in her case. For Monique, she definitely feels that she has a strong case, but the past decisions based on economic considerations seem to go against her. True, the receptionists were male, but the employer might argue that he needed to give the full time employees more incentives as they, by virtue of their full time positions, were more committed to the employer than the part-time ones. In such cases the duty of the national courts is to look at the matter on a case-by-case basis and consider all factors including the employers' intention before deciding whether the difference is caused by the employee's gender.16 REFERENCES. 1) Hall, Stephen. (1995). Nationality, Migration Rights and the Citizenship of the Union. Hague Martinus Niihoff Publishers. 2) Hartley, CT (2007). European Union Law in Global Context. Text, Cases and Materials. Cambridge University Press. 3) Medhurst, D. (). A Brief and Practical guide to EU Law. London, Blackwell Publishing. 4) Craig, P, De Burca, G (2003). EU Law: Text, Cases and Materials. Oxford University Press. 5) Tillotson, J Foster, NG (2003)Text, Cases and materials on European Union Law. 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