Third-country nationals who have sole care of a minor with the nationality of a member state of the EU cannot be automatically refused residence permit or be expelled from EU soil on the grounds of a criminal record alone, if this refusal or expulsion would force the minor to leave the territory. Expelling the parent under these circumstances must be proportionate and justified by his or her personal behaviour which must, in such cases, constitute a " genuine, present and sufficiently serious threat and adversely affecting one of the fundamental interests of the society of the host member state".
This arises from a judgement returned on Tuesday 13 September by the Court of Justice of the EU on two joined cases (C-165/14 and C-304/14), which were brought to it by the Supreme Court of Spain and the Immigration and Asylum Chamber (Upper Tribunal) of London. These two jurisdictions had to examine cases in which nationals from non-EU countries with sole care of minors who were EU citizens were refused residence permits and notified of a decision that they were to be expelled from these member states, simply because they had criminal records. The national judges ask the Court whether these grounds alone could justify the refusal to grant residence permit or issue an expulsion decision.
In its judgement, the Court responded in the negative, thereby going along with the conclusions of the Advocate General (see EUROPE 11484). The rules of a member state which automatically impose these measures solely on the grounds of the previous convictions of a non-EU parent is against EU law if these measures would oblige the minor, an EU citizen, to leave the EU. Indeed, the minors in question are entitled to move freely and reside anywhere in the territory of the EU on the grounds of their status as EU citizens guaranteed by the Treaty. National legislation which effectively deprives them of the rights guaranteed by that status therefore runs counter to the Treaty. Furthermore, the same minors, if they are not nationals of the member state in which they are resident, and members of their family (including non-EU parents) enjoy rights of residence and free movement guaranteed by the directive on the freedom of movement and right of residence of EU citizens (2004/38/EC).
A derogation to these rights, however, may be justified by reasons of public order and public security, the Court explains, but must in such cases comply with the principle of proportionality and be justified by the conduct of the person in question when this conduct constitutes a "genuine, present and seriously sufficient threat to the host member state". To assess whether such a derogation can be justified and should lead to the residence permit being refused or, if the person is already on the territory, an expulsion decision, the national authorities and judges should take account of criteria such as the gravity of the crime committed, the duration of the residence, the age, state of health, economic and family situation, social and cultural integration or the intensity of the links with the country of origin, always weighing up the interests at play, particularly the overriding interests of the minor in question. (Original version in French by Francesco Gariazzo)