Today saw the release of the Advocate General’s Opinion in the Court of Justice of the European Union joined cases of C-316/16 B v Land Baden-Württemberg and C-424/16 Secretary of State for the Home Department v Franco Vomero.

The issue in these cases concerns the entitlement of European citizens to the ‘enhanced’ level of protection against deportation when they have committed crimes. Where an individual is entitled to such a level of protection – broadly attained following ten years’ residence in a European country – the member state must show that there exist imperative grounds of public security to justify their expulsion.

For a detailed look at the law surrounding the deportation of European nationals see this recent post on Free Movement.

The questions posed by the UK Supreme Court

In July 2016 the Supreme Court referred SSHD v Franco Vomero (Italy) [2016] UKSC 49 to the CJEU. The EU law which governed the expulsion of Mr Vomero was not, it felt, sufficiently clear. The Supreme Court asked the following questions:

1. whether enhanced protection … depends upon the possession of a right of permanent residence; and, if not
2. whether the [enhanced protection] period of residence for the previous ten years… is
   1. simple calendar period looking back from the relevant date (here that of the decision to deport), including in it any periods of absence or imprisonment,
   2. a potentially non-continuous period, derived by looking back from the relevant date and adding together period(s) when the relevant person was not absent or in prison, to arrive, if possible, at a total of ten years’ previous residence.
3. what the true relationship is between the ten year residence test … and the overall assessment of an integrative link.

The opinion of the Advocate General

The Advocate General (AG) is like a legal warm-up act for the CJEU. His opinions are not binding on the court, and his role is to “propose to the Court, in complete independence, a legal solution to the cases for which they are responsible”.

However, his opinions matter. The court has historically, in the majority of cases, agreed with his findings. In this Opinion, AG Szpunar deals directly with the questions posed by the UK Supreme Court.

Does enhanced protection depend on possession of permanent residence?

The AG comes down firmly in favour of the need for permanent residence to have been acquired by an individual before he or she is entitled to enhanced protection. To find otherwise, he suggests, would render the system of protections provided for by Directive 2004/38 “plainly incoherent”.

If this line of reasoning is adopted by the CJEU, it will be a fairly major development. The question was only referred by the UK Supreme Court because a minority of the judges felt the answer was not sufficiently clear. The majority felt that permanent residence was not necessary for the attainment of the enhanced level of protection (see paragraph 27 of the UKSC judgment).

How should the “previous ten years” formulation used in enhanced protection cases be interpreted?

The AG finds that the ten-year period should in principle be continuous, but that there is no prohibition on absences. He states as follows:

the expression “the previous ten years” must be interpreted as referring to a continuous period, calculated by looking back from the precise time when the question of expulsion arises, that includes any periods of absence or imprisonment, provided that none of those periods of absence or imprisonment has had the effect of breaking the integrative links with the host Member State.

In direct answer to the Supreme Court’s question, it is not a matter of adding together periods of residence: it is, rather, the simple calendar approach, with an assessment of whether or not any periods of imprisonment/absences have broken the “integrative links” with the host state.

How should integrative links be assessed?

The AG argues that the assessment must:

1. not be confined solely to the criteria of long-lasting settlement in the host Member State and the absence of any link with the Member State of origin.
2. take account of all the relevant factors of the individual case
3. take place at the time when the authorities are ruling on the expulsion decision

And relevant factors should include

1. the nature of the offence that led to a conviction and the enforcement of a sentence of imprisonment
2. the circumstances in which that offence was committed and other factors not directly related to the prison sentence

The AG concludes that:

The stronger the integrative links (particularly in relation to the circumstances prior to imprisonment), the more disruptive the period that interrupts the continuity of residence must be if the person concerned is not to qualify for the enhanced protection against expulsion.

Consequences of this opinion

It bears repeating that this is not a ruling of the CJEU: the court can, and does, depart from the views expressed in the opinions of the Advocate General in its decisions.

However, if the court does adopt the view that permanent residence must have been established before an individual is entitled to enhanced protection, this will mark a significant development of the law in this area.