Brussels, 05/02/2016 (Agence Europe) - Advocate General Maciej Szpunar says in an opinion delivered on Thursday 4 February that the European Treaty does not allow national rules which impose the automatic refusal of a residence permit on the grounds of their criminal record for non-EU nationals who have sole care of minor children who are citizens of the EU when the refusal would require the children to leave the EU.
Two cases were referred to the Court of Justice of the EU - one from the Spanish Supreme Court (case C-165/14) and one from the Upper Tribunal (Immigration and Asylum Chamber), London (case C-304/14). In the first case, Rendon Marin, a Colombian, the father and sole guardian of a Spanish son and a Polish daughter, was refused a residence permit and a decision to expel him was taken by the Spanish authorities because of his criminal record.
Szpunar places the interest of the children who are EU citizens at the heart of his reasoning. Directive 2004/38 on the right of EU citizens to freedom of movement and residence applies only in that it allows Marin to reside in Spain with his Polish daughter, of whom he has effective custody. In the light of the Court's case-law (C-200/02, C-135/08, C-34/09), the Advocate General considers that Marin's children have the right, as EU citizens, to move and reside freely throughout the EU. Were their father to be removed, they would be required to leave the territory of the EU.
The second case concerns a Moroccan woman, the mother of a British son who lives with her in the United Kingdom and of whom she has sole care and control.
The Advocate General examined the public policy or public security exception invoked by the United Kingdom in order to justify the deportation of the Moroccan national. He concludes that expulsion is, in principle, contrary to EU law but that, in exceptional circumstances, such a measure may be adopted, provided that it observes the principle of proportionality and is based on the conduct of the person concerned (conduct that must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society). (Original version in French by Mathieu Bion)