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Chindamo and European citizenship


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There have been some excellent and well-informed posts about this case already in the legal blogging world, notably at Nearly Legal, Head of Legal and the prolific Jailhouse Lawyer.

No-one has explained the rationale for why the relevant EC Directive — full title Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — makes it so hard for a member state to deport a criminal who has been resident for a long time, however. At first glance it may seem odd that even those who have committed the most serious violent, sexual and drugs related offences and are foreign nationals cannot be deported from the United Kingdom.

The reason is that the Directive in question, usually referred to as the Citizens’ Directive by immigration lawyers, was intended to be a significant step towards the creation of European Union citizenship. Before the Directive came into force in April 2006, rights of free movement flowed from economic activity. The cessation of economic activity or the termination of a familial link with an economically active person led to the cessation or termination of your free movement rights. In real terms, losing your job would eventually lead to a withdrawal of your right to reside in another member state, or divorce from your European spouse would leave you with no right to reside in the European country in which you had hitherto resided.

The latter caused particular hardship where the relationship broke down due to domestic violence or where the European spouse moved back to their home country and you wanted to stay put, for example in the UK.

The Directive went some way towards de-linking economic activity and free movement rights, although not as far as some would have wanted.

Where it was quite strong, though, was on protection from deportation. This is because the drafters of the Directive want a person from Birmingham living in London to be treated the same as a person from Berlin living in London. This is why the Directive enables family members to accompany European citizens when they move between member states, even if those family members are from a non-EU country. The right to move freely around Europe would be a mirage if a person could not take her family with her when making that move.

Similarly, if the Brummy commits a crime, he must serve his time and comply with any release or parole conditions, but will not be punished by being restricted to residence in Birmingham only, or exile somewhere new. Similarly, the Berliner will not be so treated. Both are European citizens, both have a right to reside in Europe, wherever they so choose.

The strongest level of protection, from which Chindamo benefits, only kicks in after ten years of residence, although it remains very difficult to deport EU citizens who have been resident for five to ten-years and just plain difficult to deport those who have been resident for less than five years.

We are still a LONG way from full European citizenship and complete freedom of movement, but the Directive was a step in the right direction. If you think that is the right direction, of course.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


3 Responses

  1. I wrote about some of the EU citizenship implications. Actually, the protection was pretty strong under Directive 64/221, in the sense that it required individualised consideration of the situation. The Citizens’ Rights directive does go further, but it’s more an incremental development of a combination of the previous law and the case law, plus the institution of the new right of permanent residence.

  2. Thanks, Bondwoman. You are absolutely right, it was previously hard to deport EC nationals, but the new Directive takes it to a new level. One of the particularly interesting things to watch will be how the ECJ reconciles its previous ‘pro-citizenship’ case law with the new Directive, which is arguably less generous than ECJ case law in some areas.

    I’ve added a link to your blog.