Six months after the release of the Advocate General’s non-binding Opinion in the 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 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.

The official press release also contains a useful summary.