When an EU citizen breaks the law of another member state, fundamental questions arise. How should European states treat EU nationals and their family members who have committed crimes? How can the principles of free movement and integration, which are central to the idea of the European Union, be balanced against the need for law and order?

In two recent cases (Onuekwere v Secretary of State for the Home Department and MG v Secretary of State for the Home Department) the European Court of Justice has considered protection from expulsion under Directive 2004/38/EC. The decision in Onuekwere is disappointing but perhaps not surprising. In MG, however, the court has muddied the waters by failing to give clear guidance.

Mr Onuekwere is a Nigerian national who in 2000 married an Irish national exercising treaty rights in the UK. In the following five years, he was convicted twice and spent just over a year in prison. The CJEU was asked to rule on whether he could ‘count’ the period he had spent in prison as legal residence for the purposes of acquiring a permanent right of residence under Article 16 of Directive 2004/38 (which in turn would confer enhanced protection from deportation under Article 28(2)).

The CJEU held very firmly that periods in prison cannot be counted towards permanent residence. The court re-emphasised the importance of “social cohesion” and the need for genuine integration as a way to “strengthen the feeling of Union citizenship”. A prison sentence, which demonstrates that the person concerned does not comply with the values of the host member state as expressed in its criminal law, shows that the link of integration with the host member state has been undermined. It would be contrary to the aims of the Directive to allow periods in prison to count towards a right of permanent residence.

The decision in Onuekwere will obviously be disappointing for EU and third country nationals in other cases seeking to rely on periods spent in prison to acquire a right of permanent residence. However, the outcome is probably not surprising, and confirms the approach already taken by the domestic courts in cases such as HR (Portugal) and LG & CC.

In the second case, MG, the CJEU was asked whether a period of imprisonment disrupted continuity of residence for the purposes of the ‘imperative grounds of public security’ protection provided by Article 28(3) of the Directive, and if so whether it made any difference that MG had accumulated her 10 years’ residence before being imprisoned. MG is the wife of a Portuguese national exercising treaty rights, and had been in the UK continuously for over 10 years before she was imprisoned for an offence of child cruelty.

The court starts by emphasising, as in Tsakouridis, that the protection from expulsion in Directive 2004/38 is based on the degree of integration with the host member state. It concludes that the ten year period of residence under Article 28(3) must be continuous and must be counted back from the date of the expulsion decision. It then relies on Onuekwere to say that in principle, periods of imprisonment cannot be taken into account in establishing ten years’ continuous residence for the purposes of Article 28(3).

Well, at least that’s clear enough. But then, perhaps realising that that approach would effectively remove the protection offered by Article 28(3), the court goes on to say that where continuity of 10 years’ residence is broken by imprisonment, the host state must consider, on a case by case basis, whether the integrating links forged with the host member state have been broken such that the ‘imperative grounds’ protection is not available. The court does say that the fact that someone has resided in the host state for ten years or more prior to imprisonment is a fact which may be taken into consideration. But no guidance is provided on what constitutes an integrating link or when it’s broken.

The decision in MG undermines certainty and the effectiveness of the Directive. Because deportation decisions are usually made at the end of a period of imprisonment, it seems likely that even those who have lived in the host state for many years will be unable to demonstrate ten years’ unbroken residence and automatically obtain the protection of Article 28(3). They will now have to rely on uncertain and possibly inconsistent decisions by domestic courts as to whether they are entitled to the protection from expulsion which is one of the primary purposes of the Directive. Murky waters indeed.