A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more
Six months after the release of the Advocate General’s non-binding Opinion in the joined cases of C-316/16B v Land Baden-Württemberg and C-424/16Secretary of State for the Home Department v Franco Vomero, the Court of Justice of the European Union has today handed down its final judgment.
The case revolved around the interpretation of article 28(3)(a) of Directive 2004/38/EC:
An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:
(a) have resided in the host Member State for the previous ten years
Broadly following the AG’s Opinion, which Nick Nason had summarised brilliantly in a previous post, the Court of Justice found that this article must be interpreted in the following ways:
that it is a prerequisite of eligibility for the protection against expulsion provided for in that provision that the person concerned must have a right of permanent residence within the meaning of Article 16 and Article 28(2) of that directive.
In other words, a person must have acquired the right to permanent residence in an EU member state before being entitled to the enhanced protection against expulsion. This enhanced protection means, in the British context, that the Secretary of State must show that there are imperative grounds which can justify a decision to expel someone from the UK.
that, in the case of a Union citizen who is serving a custodial sentence and against whom an expulsion decision is adopted, the condition of having “resided in the host Member State for the previous ten years” laid down in that provision may be satisfied where an overall assessment of the person’s situation, taking into account all the relevant aspects, leads to the conclusion that, notwithstanding that detention, the integrative links between the person concerned and the host Member State have not been broken. Those aspects include, inter alia, the strength of the integrative links forged with the host Member State before the detention of the person concerned, the nature of the offence that resulted in the period of detention imposed, the circumstances in which that offence was committed and the conduct of the person concerned throughout the period of detention.
In other words, a period of imprisonment does not automatically break a ten-year period of residence in a member state, and what must be looked at instead is the extent to which integrative links previously forged with the host country have been broken.
that the question whether a person satisfies the condition of having ‘resided in the host Member State for the previous ten years’, within the meaning of that provision, must be assessed at the date on which the initial expulsion decision is adopted.
In other words, the period of residence is worked out by counting backwards from the date of the initial expulsion decision. But, as the court reminds us at paragraph 91 of the judgment, where the actual enforcement is deferred for a certain period of time, it may be necessary to carry out a “fresh, updated assessment” of whether there are still imperative grounds of public security justifying removal.
Example
David is a French national. He came to the UK in November 2004, aged 19. He studied for three years, during which he did not have Comprehensive Sickness Insurance. After he finished his studies, he got married and became a stay-at-home dad. In 2015, he was convicted of a criminal offence and sentenced to three years’ imprisonment. The Home Office is now seeking to remove him.
David cannot benefit from the enhanced protection of article 28(1) of the Directive because he did not acquire the right to permanent residence in the UK, even though he has resided in the UK for more than ten years.
Had David acquired the right to permanent residence (for example, because he worked for five years), then he would benefit from that enhanced protection. To decide whether the period of imprisonment broke his integrative links with the UK, the Home Office should consider the fact that David is married and has children in the UK; the nature of the offence; the circumstances in which the offence was committed; and David’s conduct throughout the period of detention. Factors such as continued regular contact with his children and spouse, and following a program geared towards social rehabilitation while in prison, should play in his favour.
Finally, the ten years is counted up to the day that the Home Office decided to remove David.
The official press release also contains a useful summary.
