Brussels, 13/02/2015 (Agence Europe) - Third-country nationals in the EU illegally who are simply suspected of having committed a criminal offence can be considered, subject to an examination of his or her individual situation, to constitute a “danger to public order” within the meaning of the directive on returns of illegal immigrants (2008/115/EC), and can therefore be expelled immediately or subject to notice up to seven days, depending on the individual case, without having to wait for the definitive verdict.
This is the conclusion suggested to the Court of Justice of the EU on Thursday 12 February (case C 554/13), by Advocate General Eleanor Sharpston, in response to a question on this point by the Dutch Council of State, which also asked the Court to clarify the circumstances to be taken into account to determine the notion of “danger to public order” (such as the gravity and nature of the crime, the time elapsed and the individual's intention to leave the EU) and to indicate whether the authorities should take account of this when deciding whether to give up to seven days of notice to leave or to order immediate expulsion.
In her conclusions, Sharpston first of all states that in order to determine whether, and to what extent, a third-country national residing in the EU illegally constitutes a danger to public order, the competent authorities must examine that individual's situation, rather than go on general considerations (which means that the fact of having committed a criminal offence or being illegally resident do not in themselves necessarily constitute a danger to public order).
However, if the individual is believed to be guilty of a criminal offence, the authorities do not need to wait for final sentencing to be passed in order to arrange for the person to leave with notice of less than seven days, as the directive provides. Suspicion on its own can be enough, if the examination of that person's case reveals that he or she could constitute a danger to public order, bearing in mind that the suspicion has to be based on serious elements, rather than just allegations.
As for the criteria to be taken into account to define the notion of “danger to public order” and to determine whether the person must be expelled immediately or can be given up to seven days to leave the country voluntarily, Sharpston states: the gravity and nature of the crime, the time elapsed since the crime was committed and the individual's degree of involvement, whether or not that person intends to leave the EU voluntarily and the risk of absconding, repeat offences or going on to commit an even more serious crime.
Lastly, the decision on whether to give notice to leave must be made on the basis of the principle of proportionality. This means that a state cannot automatically deny this notice on the grounds that a danger to public order has been identified, but must carry out an examination on a case-by-case basis.
The verdict, which will be delivered over the next few months, may lead to a certain level of harmonisation being brought into a field in which the disparity between legislations and absence of specific criteria have all too often led to a certain amount of arbitrariness in administrative practices. (Francesco Gariazzo)