On Tuesday 24 October, Advocate General Maciel Szpunar stated that the acquisition of a right of permanent residence is a prerequisite of an EU citizen being able to qualify for enhanced protection against expulsion (Joint cases C-316/16 and C-424/16).
In order to have protection against expulsion, a citizen must have resided in a member state other than their own for a period of 10 years during which periods of absence or imprisonment are possible.
Under the 2004/38 directive on free movement and residence, any EU citizens who have resided in a member state other than their own for a continuous period of five years are to acquire a right of permanent residence in that state, except on serious grounds of public policy or public security. Similarly, an expulsion decision may not be taken against an EU citizen who has resided in the host member state for "the previous ten years", unless the decision is based on imperative grounds of public security, as defined by that state.
Case C-424/16. In 1985, Franco Vomero, an Italian national, moved to the UK with his wife, a British national. The couple separated in 1998. Mr Vomero then left the marital home and moved into accommodation with a Mr Mitchell, whom he killed in March 2001. In 2002 he was convicted of manslaughter, sentenced to eight years’ imprisonment and released in July 2006. The British government decided to expel and with a view to his being expelled, Mr Vomero was detained until December 2007.
Asked to consider the case, the Supreme Court of the UK considers that Mr Vomero had not acquired a right of permanent residence before he became the subject of the measure for his removal. However, that court observes that Mr Vomero has resided on the territory of the UK since 3 March 1985, so that it can be assumed that he has resided in that member state "for the previous ten years" for the purposes of the directive.
Case C-316/16. B is a Greek national born in 1989. In 1993, after his parents separated, he arrived in Germany with his mother, who has worked in that member state since their arrival and possesses, in addition to Greek nationality, German nationality. With the exception of short holiday periods and a brief period of two months when B was taken to Greece by his father against the wishes of his mother, B has resided continuously in Germany since 1993. In 2013, B held up an amusement arcade.
In November 2014, the German authority responsible for foreign nationals decided that B had lost his right of entry to, and residence in, Germany. B brought an action against that decision claiming that, as he has resided in Germany since the age of three, has no ties to Greece and that the offence he committed does not fall within the scope of "imperative grounds of public security" he qualifies for the enhanced protection against expulsion.
The action having come before it, the Higher Administrative Court, Baden-Württemberg, considers that B could qualify for enhanced protection against expulsion but is uncertain as to whether that protection can be granted to B, in that he has been in prison since 12 April 2013.
In today’s opinion, Advocate General Maciej Szpunar considers first that the degree of integration of an EU citizen in the host member state is a key aspect of the system of protection against expulsion safeguarded by the directive, since the level of protection is proportionate to the extent of that citizen’s integration in the member state concerned.
In the view of the Advocate General, an approach whereby the right of residence does not constitute a prerequisite of qualifying for enhanced protection against expulsion would make the system of protection provided for by the directive plainly incoherent. Such an approach would mean that a person who has resided in the host member state for the previous ten years could normally not be removed other than on imperative grounds of public security, but that he could also, paradoxically, be removed whenever he became an unreasonable burden on the social assistance system of that state.
Calculating the ‘previous ten years’. Szpunar observes that that period must, in principle, be continuous but that the period must not be equated to a complete prohibition of absences, since it would be contrary to the objective of free movement of persons.
He considers that in order to establish to what extent periods in which an EU citizen is not present on the territory of the host member state interrupt residence, an overall assessment must be made of the integrative links of the person concerned with the host member state. This will take into account the location of the centre of the personal, family or professional interests of the EU citizen in the territory of a member state
Even though a period of imprisonment is tantamount to a forced presence on the territory of the host member state, the Advocate General considers that there can be no justification for not including periods of imprisonment in the overall assessment. He notes, in particular, that the member states’ current penal policy, seeks to rehabilitate offenders, enabling them to re-establish their place in society after detention.
Lastly, Szpunar considers that the overall assessment of integrative links cannot be confined solely to the criteria of long-lasting settlement in the host member state and the absence of any link with the member state of origin. That assessment must instead take account of all the relevant factors of the individual case. The Advocate General adds that the stronger the integrative links, the more disruptive the period that interrupts the continuity of residence must be if the person concerned is not to qualify for the enhanced protection against expulsion. (Original version in French by Mathieu Bion)