Measures to enforce a removal order of an EU citizen and his or her family members on grounds of public policy or public security constitute restrictions on the right of movement and residence, which may be justified where they are based exclusively on the personal conduct of the individual concerned and comply with the principle of proportionality, says the Court of Justice of the EU in a judgment of 22 June.
In this preliminary judgment (case C-718/19), the Court considers that, taking into account the cooperation mechanisms available to EU Member States, the maximum detention period of 8 months provided for by Belgian law goes beyond what is necessary to ensure an effective removal policy.
The European judges were responding to a question from the Belgian Constitutional Court, which had received two appeals for the annulment of the Belgian law of 24 February 2017 on access to the territory, residence, establishment and removal of foreigners in order to strengthen the protection of public order and national security.
On the one hand, this Regulation provides for the possibility of imposing on EU citizens and their family members, during the time they have to leave Belgian territory, preventive measures aimed at avoiding any risk of absconding, such as house arrest. On the other hand, it allows EU citizens and their family members who have not complied with the removal order to be detained for a maximum period of 8 months in order to ensure its enforcement.
The Belgian Constitutional Court wanted to know whether this national Regulation was in conformity with the freedom of movement guaranteed to EU citizens and their family members by Articles 20 and 21 TFEU and by the Residence Directive.
According to the CJEU, Articles 20 and 21 TFEU and the Residence Directive do not preclude preventive measures aimed at avoiding the risk of absconding, and such measures cannot be considered contrary to the Residence Directive merely because they are similar to measures aimed at transposing the Return Directive into national law.
However, the judgment states, in view of the fundamental status enjoyed by EU citizens, the measures that may be imposed on them to avoid the risk of absconding cannot be less favourable than those aimed at avoiding the risk of absconding during the period of voluntary departure of third country nationals who are subject to a return procedure on grounds of public order.
The duration of detention in Belgium is the same as that applicable to the removal of third country nationals. However, EU Member States have mechanisms for cooperation and facilities for the removal of EU citizens or their family members to another Member State, the Court points out. See the judgment: https://bit.ly/3gJWt7I (Original version in French by Aminata Niang)