EU Judges Court Controversy With Migrant Case Before Brexit Vote

  • Case on migrant benefits at heart of referendum debate
  • EU court says it can’t delay potentially controversial rulings

The timing of Tuesday’s European Court of Justice ruling on Britain’s right to limit welfare benefits for migrant workers couldn’t be more delicate.

A defeat for the U.K. government on such a red-hot topic would be a shot in the arm for the “Leave” camp days before a referendum on the country’s European Union membership. Even a victory would remind Eurosceptic voters that judges in Luxembourg rather than London call the shots.

But despite the high stakes, academics, lawyers and judges are split over whether verdicts should be delayed in controversial cases with potential for skewing election results such as the U.K’s make-or-break vote on Europe.

“A court engaged in judicial review, if it has any sense, does have a degree of political sensitivity about the judgments it makes and perhaps when it makes them too,” said Professor John Curtice at Strathclyde University, one of the U.K.’s leading experts on polling.

‘Make Hay’

“Clearly if the court were to rule against the U.K. on this subject, the “Leave” side would, to use colloquial English, try to make hay with it,” said Curtice. “They will say that is just the kind of thing that the EU does, it goes to show we can’t make our own rules, etc. It would be rather embarrassing for the “Remain” side, if that were to happen.”

How the bloc deals with asylum seekers and migrant workers has become one of the most contentious points of the Brexit campaign. The biggest influx of refugees to Europe since World War II has put the region’s migration system under severe pressure as governments have bickered about who should take responsibility for new arrivals.

Tuesday’s ruling on Britain’s powers to limit benefits for migrant workers arriving from elsewhere in the 28-nation EU comes days after a decision at the top court on the legal rights for asylum seekers who are sent against their will to another EU nation.

‘Sensitive Time’

“At such a sensitive time, ‎it would be disappointing to see the court seeking the democratic debate,” said Christopher Bright, a London-based lawyer practicing U.K. and EU law at Shearman & Sterling LLP. “It does have discretion over the listing of decisions.”

Should the British government win, Bright said, “it would be unfortunate for it to announce support for the U.K. over the European Commission in a case limiting the rights of migrants so close to the referendum.”

Still, the EU Court of Justice argues it is “not a political institution” and its role is “not to involve itself in the political debates and decisions” of EU countries.

“The court does not determine the date on which a ruling will be delivered based on political considerations,” the Luxembourg-based tribunal’s press service said.

“Obviously, courts are courts and don’t interfere in politics -- this is the basics of separation of powers,” said Denis Waelbroeck, a lawyer and academic in EU law at Ashurst LLP in Brussels. “The Brexit issue should therefore not influence their decision making in any way, even as regards secondary issues such as timing of judgments.”

Court Credibility

Unlike the courts, the commission is an administrative and political body that can hold off “on any initiatives and cases even remotely considered to be Brexit referendum sensitive,” said Trevor Soames, an EU competition lawyer in Brussels at Shearman & Sterling LLP.

“I really don’t think a court should behave in such a manner and it isn’t. I guess it could, but it would undermine its credibility,” Soames said.

That is how it should be and the court shouldn’t consider the possible consequences of its rulings, according to one of its former judges, who asked not to be named. He recalled the Latin expression: “Fiat justitia ruat caelum,” usually translated as “Let justice be done, though the heavens fall.”

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