In these punchy judgments, the Court of Justice of the European Union (CJEU) looked at Directive 2004/38/EC (the directive) yet again. In Essa (EEA: rehabilitation/integration)  UKUT 00316 (IAC), while imparting guidance last June, an eager presidential Upper Tribunal (UT) had anticipated that these decisions “may lead to further guidance that requires the principles we will set out in this decision to be revisited”: para 16.
Overall, guidance or otherwise, this pair of cases is bad news for foreign nationals in prison who face expulsion.
Inquiry was made into whether the method of calculating the 10-year period that (save on imperative grounds of public security) protects Union citizens against expulsion permits periods of imprisonment to be taken into account. Similarly, the Court also assessed whether periods of imprisonment count towards time for permanent residence.
Requests for preliminary rulings in these absorbing, perhaps even controversial, cases was received by the CJEU from the UT – reported as MG (EU deportation – Article 28(3) – imprisonment) Portugal  UKUT 00268 (IAC) and Onuekwere (imprisonment – residence) Nigeria  UKUT 269 (IAC) – in August 2012.
This post looks at MG and the next one examines Onuekwere.
MG and her husband JG were both Portuguese. They entered the UK where they had 3 sons – M, J and L. MG gave up work to have the children. While inactive she was supported by her husband until their separation (despite which they are still married). Subsequently, the children were placed in foster care as a result of a report by hospital staff that injuries to L were non-accidental. MG was sentenced to 21 months’ imprisonment for having been convicted on 1 count of cruelty and 3 counts of assault by beating L who was under 16 years. Although her husband got the children’s custody MG was allowed to have supervised public contact with them (which was later restricted by a family judge who thought that MG had not shown herself to be free of drugs). While in prison MG applied for permanent residence in the UK and the government ordered her deportation on grounds of public policy and public security pursuant to regulation 21 of the Immigration (European Economic Area) Regulations 2006.
She remained in immigration detention despite completing her sentence because the Secretary of State for the Home Department (SSHD) thought that (a) the enhanced protection which is conferred by 10 years’ residence depended on integration, which cannot occur in prison, in the host Member State (b) MG did not have permanent residence and did not enjoy intermediate protection against expulsion, even if she did serious public policy and public security grounds for expelling her existed and (c) MG did not qualify for the basic level of protection against expulsion. The First-tier Tribunal allowed her appeal; it decided that in light of MG’s 10-year residence in the UK, the SSHD had failed to show imperative grounds of public security but did not find that she was permanently resident in the UK within the meaning of the directive. The SSHD appealed to the UT which stayed proceedings and referred 4 questions to the CJEU for a preliminary ruling – the Court considered questions 2 and 3 together first and then considered questions 1 and 4. Fundamentally, the UT asked the CJEU whether:
Questions 2 and 3
- The 10-year period of residence mentioned in article 28(3)(a) of the directive needs to be calculated by counting backwards (from the decision to expel the person concerned) or forwards (from the commencement of that person’s residence in the host Member State) and whether that period had to be continuous?
Questions 1 and 4
- Within the meaning of article 28(3)(a), a period of imprisonment is capable of breaking the continuity of the period of residence and may, as a result, affect the decision regarding the grant of enhanced/maximum protection provided even if – counting backwards from the expulsion decision – the Union citizen resided in the host Member State for the 10 years prior to imprisonment?
The Court’s Judgment
Questions 2 and 3
The Court held that, unlike the necessary period for obtaining a right of permanent residence (which starts when lawful residence commences in the host Member State), in light of earlier jurisprudence the 10-year period of residence for maximum protection contemplated by the directive needs to be continuous and calculated by counting back from the date of the expulsion decision.
The CJEU explained its decision by noting that although recitals 23 and 24 of the directive afforded special protection to genuinely integrated persons in the host Member State, the drafting of article 28(3) is such that 10 years’ residence in the host state preceding the expulsion decision is determinative of whether the Union citizen would qualify for enhanced protection: para 23 citing Case C-145/09 Land Baden-Würtemberg v Tsakouridis  ECR I-11979, para 31. Similarly, in addition to the residence criterion for special protection, individual cases turn on their facts and all relevant factors such as the length, cumulative duration, frequency, reasons for absences need to be considered in establishing whether the “centre of the personal, family or occupational interests of the person concerned” has been transferred to another Member State: para 25, citing Tsakouridis, para 38. Since article 28 does not mention the circumstances which can interrupt the 10-year period of residence needed to acquire the right to enhanced protection, such factors/findings explain the extent to which absences from the host Member State prevent someone from enjoying enhanced protection: para 26 referring to Tsakouridis paras 22 & 29 where the Grand Chamber observed:
29 Article 28(3)(a) of Directive 2004/38, while making the enjoyment of enhanced protection subject to the person’s presence in the Member State concerned for 10 years preceding the expulsion measure, is silent as to the circumstances which are capable of interrupting the period of 10 years’ residence for the purposes of the acquisition of the right to enhanced protection against expulsion laid down in that provision.
Owing to the fact that 10 years’ residence preceding the expulsion decision is the touchstone for the grant of enhanced protection – and that absences from the host Member State can affect whether or not such protection is granted – the period of residence in article 28(3)(a) needs to be continuous and must be calculated by counting back from the date of the decision ordering the expulsion of the person concerned: paras 27 & 28.
Questions 1 and 4
In essence, the CJEU held that a period of imprisonment not only interrupts the continuity of the period of residence but it also affects the decision relating to the grant of enhanced protection even where the Union citizen has resided in the host Member State for 10 years before being imprisoned. On the other hand, a Union citizen’s residence in the host Member State for 10 years prior to imprisonment could be considered in the overall evaluation to determine whether the integrating links previously forged with the host Member State have been broken. It has, however, been observed that the Court did not provide guidance on what an integrating link is and in which circumstances it is severed.
In Tsakouridis, paras 24 & 25, the Court had already held that the framework for protection against expulsion under the directive depends on the degree of integration and thus para 30 of the instant judgment reiterated that:
[T]he greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be, in view of the fact that such expulsion can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the FEU Treaty, have become genuinely integrated into the host Member State.
In respect of article 16(2) of the directive, it has been settled that the imposition of a criminal sentence indicates that the concerned person has, in violation of the criminal law, disrespected the host Member State’s values and the inclusion of periods of imprisonment in calculating the requisite 5 years – by TCN family members of Union citizens for permanent residence – would clearly be at odds with the directive’s objectives: para 31 citing Case C-378/12 Onuekwere v SSHD  ECR I-0000, para 26; see posts on Bot AG’s opinion and the Court’s judgment. Because integration is important in underpinning permanent residence and the hierarchy of protection against expulsion, the rationale justifying the preclusion of periods of imprisonment when granting rights of permanent residence must also be applied in correctly interpreting article 28(3)(a) and so periods in prison are incapable of being counted towards enhanced protection because such periods interrupt continuity of residence: paras 32 & 33.
In relation to the degree to which breaks in the period of residence during the decade preceding an expulsion decision impede the enjoyment of enhanced protection, as stated in Tsakouridis at para 32, a fact specific analysis must be made in each case: para 35. While periods of imprisonment do interrupt the continuity of residence, along with any relevant factors in a given case, national authorities may consider such periods in evaluating whether integrating links forged with the host Member State have been compromised and whether enhanced protection will be granted: para 36 citing Tsakouridis, para 34.
Finally, the Court noted that where 10 years’ residence in the host Member State is established, despite the finding that the requisite 10-year period of residence to achieve enhanced protection must be calculated by counting back from the date of the expulsion decision, the fact that the calculations for enhanced protection and permanent residence differ indicates that 10 years’ residence before imprisonment may be taken into account in the overall evaluation: para 37.
Overall, the Court (Second Chamber) held that:
1. On a proper construction of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, the 10-year period of residence referred to in that provision must, in principle, be continuous and must be calculated by counting back from the date of the decision ordering the expulsion of the person concerned.
2. Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host Member State for the 10 years prior to imprisonment. However, the fact that that person resided in the host Member State for the 10 years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host Member State have been broken.
In, MG however, the court has muddied the waters by failing to give clear guidance.
Moreover, this lack of guidance means that:
The decision in MG undermines certainty and the effectiveness of the Directive. Because deportation decisions are usually made at the end of a period of imprisonment, it seems likely that even those who have lived in the host state for many years will be unable to demonstrate ten years’ unbroken residence and automatically obtain the protection of Article 28(3). They will now have to rely on uncertain and possibly inconsistent decisions by domestic courts as to whether they are entitled to the protection from expulsion which is one of the primary purposes of the Directive. Murky waters indeed.