THE BLOG

Theresa May's Irrational Fear Of The European Court Of Justice

03/07/2017 13:20
Stefan Wermuth / Reuters

Theresa May has finally been dragged kicking and screaming into accepting EU citizens' rights after Brexit -- or at least paying lip-service to that idea. Her government's published proposals unveiled on 26 June 2017 are full of weasel words like "seek to ensure" and "seek to guarantee". One of the few categorical statements in the document is that the European Court of Justice (ECJ) "will not have jurisdiction in the United Kingdom". Instead, the rights of EU citizens in the UK would be subject to the UK domestic courts. And Theresa May's smirking poodle, Brexit Secretary David Davis, has vowed to "fight" against giving the ECJ a say on the rights of EU citizens after Brexit. This is the same David Davis who in 2014 filed a lawsuit against the British Government's surveillance legislation -- in that very same ECJ!

Lounani Case
Theresa May has never had a very secure grasp of anything to do with Europe. Despite some undoubted faults, the ECJ has a better set of priorities than the British domestic courts. This was well demonstrated by an extremely important but much under-publicised case decided by the ECJ in January 2017. Mostafa Lounani, a Moroccan national, who had been living in Belgium illegally since 1997, was convicted in 2006 of participating in the activities of a terrorist group. In 2010 he applied for refugee status in Belgium, claiming that he feared "persecution" if he was returned to Morocco. The Belgian authorities were deadlocked and referred the matter to the ECJ. Though Mr Lounani had not himself actually committed or attempted to commit any terrorist act but had only provided "logistical support" to a terrorist group, the ECJ found that that was enough to deny him refugee status.

UK Supreme Court Contrast
Compare that with the UK Supreme Court decision in JS (Sri Lanka) v. Secretary of State [2010] UKSC 15. This was an application for refugee status by someone who had been actively involved in the military operations of the "Tamil Tigers" in Sri Lanka, an organization which is proscribed as a terrorist organisation in 32 countries around the world, including the EU - and the UK. His application for asylum was refused by the UK Home Secretary on the ground that he had been "a voluntary member of an organisation that had been responsible for widespread and systematic war crimes and crimes against humanity". Both the Court of Appeal and the UK Supreme Court found against the government and allowed JS's application for refugee status - disagreeing with both the United Nations Refugee Agency (UNHCR) and the Canadian Federal Court of Appeal, which hold that mere membership of a predominantly terrorist organization may be enough to deny an applicant refugee status.

Relevance to EU Citizens' Rights
What has this got to do with the rights of EU citizens in the UK? Just this, that while the ECJ is primarily concerned to protect ordinary law-abiding members of society against terrorists and even non-terrorists with terrorist associations like Lounani, the UK Supreme Court seems more concerned to protect the interests of active members even of organizations proscribed by the UK itself as "Terrorist Groups".

Human Rights vs. Human Rights
It cannot be sufficiently stressed that in every human rights case there are human rights involved on both sides. A human rights case against the government is not just that: it is a case against the mass of law-abiding members of society. Theresa May and David Davis, please note!

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