AG Szpunar: Permanent Residence is Necessary for Enhanced Protection against Expulsion

In EU Citizenship and Federalism: The Role of Rights, Michal Meduna’s entertaining chapter examines the protection EU citizens enjoy against expulsion as a consequence of scelestus europeus sum or “I am a European offender”. Toying with Sir Francis Jacob’s idea in the case of Konstantinidis (C-168/91, EU:C:1992:504) that EU citizens on the move can claim civis europeus sum to protect their fundamental rights, Meduna explains that “we do not find ourselves in a Greek tragedy”. Accordingly, the European Commission’s DG Justice, Human Rights and Citizenship concludes that key cases such as B and Vomero (Joined Cases C‑316/16 and C‑424/16, EU:C:2017:797) provide the CJEU the opportunity to rectify earlier mistakes – chances that were “squandered” in Rendón Marín (C‑165/14, EU:C:2016:675) and CS (Morocco) (C-304/14, EU:C:2016:674) – by fully federalising EU citizenship. For Meduna, “the Delphic prophecy” in Grzelczyk (C-184/99, EU:C:2001:458), that EU citizenship is “destined to be the fundamental status of the nationals of the member states”, compels EU institutions and citizens alike to toil to ensure that EU criminals can claim scelestus europeus sum confidently and “see national authorities nodding, and not laughing in response.” However, the very uncomfortable picture presented by recent jurisprudence has potentially been enlarged yet again because in B and Vomero AG Szpunar has opined that the acquisition of a right of permanent residence is mandatory for an EU citizen to qualify for enhanced protection against expulsion.

A case with a complex procedural history, Vomero is a reference to the CJEU from the UK Supreme Court which granted permission to appeal in February 2013 but stayed proceedings as references were already pending in MG (C-400/12, EU:C:2014:9) and Onuekwere (C-378/12, EU:C:2014:13). Vomero is an Italian, recidivist offender, whose crimes include manslaughter, assaulting the police, driving a motor vehicle while unfit through drink or drugs and driving while disqualified. He entered the UK more than 30 years ago after meeting his British partner in France. They married, jointly purchased property and had five children but their marriage broke down. Thereafter, Vomero moved into accommodation with Edward Mitchell and killed him by battering him on the head with weapons, including a hammer, and subsequently strangled Mitchell with the flex from an iron. Among other things, two questions struck the Supreme Court as important. First of all, whether enhanced protection is available under article 28(3)(a) of Directive 2004/38/EC to an EU citizen who does not enjoy a right of permanent residence under article 16 or therefore enjoy the lesser protection available under article 28(2). Secondly, so far as material, what are the principles on which protection is available under articles 28(2) and 28(3)(a).

In Case C-316/16, B is a Greek national who was born in 1989 and arrived in Germany with his mother in 1993 after the separation of his parents. B’s mother has worked in Germany since her arrival and has German nationality in addition to Greek nationality. B had been continuously resident in Germany since 1993 apart from short holidays and a period of two months when his father removed him to Greece against his mother’s wishes and the Greek authorities repatriated him to Germany. He speaks fluent German and possesses a lower secondary school leaving certificate. B’s conviction for holding up an amusement arcade – armed with a gun loaded with rubber bullets, with the intention of obtaining money – resulted in a sentence of five years and eight months’ imprisonment.

In November 2014, the German authorities decided that B had lost his right of entry to, and residence in, Germany. He appealed on the ground that he had been resident in Germany since he was three and he qualified for the enhanced protection against expulsion provided for by the Directive because he had no ties to Greece. Furthermore, he contended that his offending did not fall within the scope of “imperative grounds of public security” as contemplated by article 28(3)(a) of the Directive. B was successful before the Verwaltungsgericht Karlsruhe (Administrative Court, Karlsruhe) in September 2015.

Upon the Land of Baden-Württemberg’s appeal, the Verwaltungsgerichtshof/Higher Administrative Court, Baden-Württemberg, took the view that B’s actions fell outside the test found in article 28(3)(a). With that in mind, the court reasoned that B qualified for enhanced protection against expulsion. But on the other hand it was less certain of whether B enjoyed enhanced protection as he had been imprisoned since April 2013. The referring court thus asked the CJEU whether the long-term settlement of a EU citizen in a host member state and the absence of any link with the state of nationality are factors of sufficient weight to establish that the person concerned may qualify for enhanced protection under the Directive.

Advocate General Maciej Szupnar

On the issue of whether permanent residence is a prerequisite for enhanced protection under article 28(3)(a), an uncertainty that had even boggled the mind of a jurist as eminent as Lord Mance, the right answer is that the acquisition of a right of permanent residence under articles 16 and 28(2) of the Directive is a prerequisite of qualification for enhanced protection under article 28(3)(a). The system of protection created by the Directive is sequential in nature. The level of protection against expulsion is “inherently gradual” and the degree of integration of an EU citizen in the host member state is “a key aspect” of the system of protection against expulsion produced by the Directive because the level of protection provided is proportionate to the extent of the EU citizen’s integration in the host member state.

The intricacies of whether the levels of protection against expulsion are proportionate to the degree of integration in the host member state had been discussed in earlier case law. In Tsakouridis (C‑145/09, EU:C:2010:708) the CJEU held at para 40 that the test of “imperative grounds of public security” in article 28(3)(a) – underpinned by 10 years’ previous residence – is much narrower than the test of “serious grounds” envisaged by article 28(2) which requires five years’ previous residence. Notably, in Onuekwere it was held that a period of imprisonment interrupts the continuity of the legal residence necessary for the acquisition of a right of permanent residence under article 16(1). On the other hand, in MG with respect to the 10-year residence period envisaged by article 28(3)(a) it was said that imprisonment may interrupt continuity of residence only “in principle”.

In Tsakouridis, the CJEU held that national authorities must conduct an overall assessment to ascertain whether the integrative links previously forged with the host member state have been broken. In doing so it decided against applying by analogy the conditions in article 16(4), relating to the loss of the right of residence, so as to determine the extent absences from the host member state during the previous 10 years prevented the acquisition of enhanced protection under article 28(3). Tsakouridis and MG were both cases where the right of permanent residence had not been lost and the CJEU’s point of departure was that the protection enjoyed under article 28(2) was not in issue. Tsakouridis is not authority for the proposition that someone facing expulsion could qualify for enhanced protection under article 28(3)(a) while simultaneously being deprived of a right of permanent residence.

AG Szupnar observed that the CJEU held in Lassal (C‑162/09, EU:C:2010:592) that the acquisition of a right of permanent residence is subject to integration in the host member state. Moreover, as explained in Dias (C‑325/09, EU:C:2011:498) and Onuekwere, an EU citizen’s degree of integration in the host member state “is based not only on territorial and temporal factors, but also on qualitative factors.” While these cases focussed on permanent residence under article 16(1) and not 10-years’ residence under article 28(3)(a), the scope of the CJEU’s analysis was nevertheless relevant because:

53. … the degree of integration plays a role in the system of protection against expulsion established by article 28 of Directive 2004/38.

Thus, protection against expulsion contemplated by article 28(2) and enhanced protection envisaged by article 28(3)(a) go hand in hand and they depend on the required degree of integration. The difference between these two rules concerns the degree of integration required to achieve a given level of protection which is the combined result of the same factors and:

54. … Consequently, it is not possible to qualify for the higher level of protection without first reaching the degree of integration necessary in order to qualify for the lower level of protection.

The sequential nature of the levels of protection against expulsion conferred by the Directive was confirmed by the “coherence argument”. The submission that permanent residence is not a prerequisite of qualification for enhanced protection produced paradoxical consequences because:

57. … If that were the case, a Union citizen could not be expelled unless there were imperative grounds of public security and, at the same time, he could be expelled if he were to become an unreasonable burden on the social assistance system of the host member state, a situation which would render the system of protection against expulsion under Directive 2004/38 plainly incoherent.

AG Szupnar’s analysis was steered by the observation that article 16(1) clearly states that the right of permanent residence is not to be subject to the conditions set out in Chapter III of the Directive which ensure that during their duration of residence EU citizens do not become a burden on the host member state’s social assistance system. In light of the commentary in K Lenaerts, European Union Citizenship, National Welfare Systems and Social Solidarity (2011), it was apparent that a person with a right of permanent residence might constitute a burden on the host member state’s social assistance system without it being possible to remove that person from the host member state’s territory. The general rule, under article 24(2), is that an EU citizen permanently resident in the host member state can unconditionally access certain types of financial assistance and faces less stringent conditions in relation to maintaining legal residence.

A person possessing a right of permanent residence is protected against expulsion even if he is a burden on the social assistance system of the host member state. Since article 16(1) automatically excludes the possibility of a person possessing permanent residence from being expelled from the host member state for reasons relating to the functioning of the social assistance system, the systems put in place to ensure compliance with the principle of proportionality are distinct from the right of permanent residence. Overall the possession of permanent residence under articles 16 and 28(2) is mandatory to qualify for enhanced protection under article 28(3)(a).

On the question of the method for calculating “the previous 10 years”, within the meaning of article 28(3)(a), confirmation was sought on the issue of whether periods of absence and imprisonment may be counted as periods of residence. Similarly, clarification was sought on the precise relationship between the 10-year period in contemplation and the overall assessment of an integrative link, the latter being “a far more nebulous legal concept” than the former.

The CJEU has interpreted article 28(3)(a) as meaning that the previous 10 years must, in principle, be continuous. Yet AG Bot’s Opinion in Tsakouridis discerned that the imposition of a complete prohibition on absences is impossible because it would negate the objective of the free movement of persons under the Directive to hinder EU citizens from exercising their freedom of movement on the basis that a mere absence from the host member state may undermine their right to enhanced protection against expulsion. Similarly, Tsakouridis decided that the host member state’s authorities must conduct a case sensitive analysis of any absences preventing an EU citizen from enjoying enhanced protection and consideration must be provided to the length of each period of absence from the host member state, the cumulative duration and the frequency of those absences, as well as the reasons why the person concerned was absent.

So as to ascertain whether the links with the host member state have been broken, an “overall assessment” needs to be conducted regarding whether the absences resulted in the transfer of the EU citizen’s centre of personal, family or occupational interests to another member state. AG Szupnar opined that the “overall assessment” aims to ensure that the protection provided by article 28(3)(a) is not rendered “illusory or totally ineffective as a result of an unrealistic requirement” by imposing unconditional continuity of presence of 10 years in the host member state. Thus, the idea of an integrative link needs to be interpreted flexibly so as to ensure genuine enjoyment of freedom of movement.

AG Szupnar said it is unlikely that an EU citizen can pose a threat to one of society’s fundamental interests if a serious crime justifying a prison sentence has not been committed. Criminally convicted EU citizens seeking protection from expulsion remain in custody, or have recently been imprisoned, at the time when the issue of expulsion is considered. If imprisonment is routinely construed to prevent the grant of protection envisaged by article 28(3), then that provision would be “deprived of its substance”.

AG Szupnar recalled that in Dias it was held that residence without authorisation undermines the integrative link between the EU citizen and the host member state because integration is measureable on qualitative factors, and not just on temporal and territorial factors, related to compliance with the ethos of the national legal order. As shown by Onuekwere and MG, the interruption in continuity of residence is not connected to the offence itself but to the imposition of a prison sentence. National authorities deciding on expulsion are prevented from ruling on criminal liability and its consequences outside criminal proceedings. It was thus unpersuasive to say that transgressing with the values of the national legal order justifies the conclusion that imprisonment automatically interrupts residence under article 28(3)(a). Moreover, Tsakouridis and MG clarify that an “overall” assessment militates taking “all the relevant factors into consideration in each individual case” and accordingly an EU citizen’s integration in the host member state turns on temporal, territorial and qualitative factors. So a purely temporal criterion such as length of residence alone cannot be the only yardstick used in order to assess the degree of the integrative links.

On the question of the inclusion of periods of imprisonment in calculating the previous 10 years under article 28(3)(a), AG Szupnar said that integration is the foundation of the system of protection against expulsion under the Directive. Integration implies the existence of a genuine link with the member state where the centre of the personal, family or professional interests of the EU citizen is located. Prison time casts doubt on the integration of the EU citizen and:

83. … Imprisonment is tantamount to a forced presence in the host member state, which is likely to call into question the finding that – in the words of Tsakouridis – the centre of interests was located and maintained in the host member state in the exercise of freedom of movement.

Accordingly, imprisonment makes continuity of residence questionable and undermines the presumption of integration during the previous 10 years. Integration assessed on the basis of qualitative factors, as opposed to territorial and temporal factors, intensifies this analysis. Detention disrupts integration in the host member state’s society because of restrictions on the EU citizen’s freedom. Custodial sentences isolating offenders from society are usually a measure of last resort to practically protect society from dangerous criminals. Imprisonment entails a presumption of the commission of a serious offence and it is reserved for serious offenders who tend to disrespect the host member state’s social values.

AG Szupnar thought his interpretation coincides with the Commission’s Communication (COM(2009) 313 final) to the European Parliament and the Council on guidance for the Directive’s better transposition and application. As a rule, where no links with the host member state are built, member states are not obliged to take time actually spent behind bars into account when calculating the duration of residence under article 28. The Commission’s point of departure is that in evaluating the level of protection against expulsion within the framework of article 28(2) and (3), periods of imprisonment are relevant provided that the EU citizen is firmly settled in the host member state.

The baffled Supreme Court wanted to eliminate any inconsistency in understanding the terms of the Directive and Lord Mance had said that the analysis of the 10-year rule in MG had been conducted “confusingly”. Nevertheless, AG Szupnar did not detect any “‘tension’ between the test set out in article 28(3)(a) … and the overall assessment of an integrative link, or any lack of clarity with respect to the overall assessment.” He judged that “the previous 10 years” in article 28(3)(a) means a continuous period, calculated by looking back from the precise time when the question of expulsion arises, and includes any periods of absence or imprisonment, if none of the said periods has resulted in breaking the integrative links with the host member state.

No justification exists for not including periods of imprisonment in the overall assessment. Particularly, excluding periods of imprisonment from the assessment of integrative links was at variance with member states’ present penal policy under which rehabilitating offenders and facilitating the reestablishment of their place in society after detention is a basic function of the sentence. Interestingly, AG Szupnar found it “perfectly realistic” to allow someone serving a sentence of at least five years’ imprisonment to keep his ties with the host member state by maintaining family links during his detention.

Bouchereau (30/77, EU:C:1977:172), Santillo (131/79, EU:C:1980:131) and Orfanopoulos and Oliveri, (C‑482/01 and C‑493/01, EU:C:2004:262) all confirm that the requirement of the existence of a present ground for expulsion must be met at the time of expulsion and when the question of expulsion arises, indeed the present and genuine nature of the basis justifying it must be examined pursuant to article 27(2). AG Szupnar’s search for consistency between the assessment of integrative links and the assessment of the immediacy of the threat to the interests of the host member state led him to ponder that:

107. It would therefore be inconsistent if, in systems where expulsion measures are taken by administrative decision, the immediacy of the threat to the host member state’s interests were to be assessed in the light of the circumstances prevailing when the expulsion measure was adopted, while the degree of integration, which determines the level of protection against expulsion, were to be assessed retrospectively, with reference to an earlier point in time.

It was AG Szupnar’s view that the scope of the overall assessment carried out to determine whether integrative links have been broken cannot be limited to the criteria of long-term settlement in the host member state and the complete lack of ties with the home state. Rather, the said assessment must occur at the time when the authorities are ruling on the expulsion decision and it must take account of all the relevant factors of the individual case keeping in mind the principle of proportionality.

The relevant factors should include (i) the nature of the offence that led to a conviction and the enforcement of a sentence of imprisonment (ii) the circumstances in which that offence was committed and (iii) other factors not directly related to the prison sentence. Where the integrative links are stronger, especially in relation to the circumstances prior to imprisonment, if the EU citizen concerned fails to qualify for enhanced protection against expulsion, the period that interrupts the continuity of residence must be more disruptive.

In PI (C-348/09, EU:C:2012:300), it was held that in dealing with the situations covered by article 28(3), it is also necessary to conduct the review stipulated by article 28(1) which requires the host member state to take account of considerations such as the social and cultural integration of the EU citizen, as well his length of residence in the host member state, his age, state of health and family and economic situation.

The Higher Administrative Court, Baden-Württemberg opined that the degree of integration may be subject to a twofold assessment – independently under article 28(1) and as part of the overall assessment to determine whether continuity of residence during the previous 10 years under article 28(3)(a) has been maintained – in connection with a single expulsion decision which is inconsistent with the Directive’s aims. AG Szupnar was not persuaded that the twofold assessment of integrative links is inconsistent with the Directive’s aims because (i) the aim assessment under article 28(1) is to ascertain whether expulsion would be proportionate in the light of the circumstances prevailing when the question of expulsion arises and (ii) the degree of integration may not be sufficiently high to ensure continuity of residence for the purpose of article 28(3)(a) but simultaneously it may be enough to prevent expulsion on the basis of the principle of proportionality. Indeed, assessing the integrative link only once would mean that a person threatened by an expulsion measure could not derive any benefit from his social and cultural integration in the host member state.

In assessing an EU citizen’s expellability, to determine whether his previous integrative links with the host member state have been severed because of imprisonment with the result that the availability of enhanced protection under article 28(3)(a) is unclear, it is necessary to conduct a concrete overall assessment which accounts for all relevant factors in each individual case, concerning all periods of presence in the host member state, including periods of imprisonment.


Contrary to AG Szupnar’s opinion, the majority view in the Supreme Court was that permanent residence is not a prerequisite for achieving enhanced protection whereas the minority regarded the position as unclear at the very least and so a reference to the CJEU was apposite. From that angle, somewhat paradoxically, the maxim scelestus europeus sum was better understood and embraced by British justices in comparison to AG Szupnar (who, of course, in a previous incarnation acted as an agent of the Polish government in proceedings before the CJEU).

It is also easy to criticise AG Szupnar because in his own chapter in EU Citizenship and Federalism, he exaggerates the vitality of “European integration” by stressing that EU citizenship has somehow miraculously transformed “a purely legal and economic project into a political and social one.” Apart from all the other problems plaguing the EU, he appears to be totally oblivious to the prospect of Brexit – an event which proves that many people voted not to have EU citizenship because they prefer to be exclusively British.

If it is adopted by the CJEU, AG Szupnar’s opinion heralds an important development in the law of free movement and protection from expulsion. If anything, the “overall assessment” proposed by him is bound to be a finely balanced question in every case and his approach really is a far cry from being able to claim “I am a European offender” to repel expulsion. It seems to me that AG Szupnar’s position is one that would certainly make utopians such as Michal Meduna cringe because Meduna’s ideas represent a more expansionist view of the law of freedom of movement which would not impose permanent residence as a condition precedent to enhanced protection.

Even if we do not find ourselves in a Greek tragedy and the Delphic prophecy still holds true, AG Szupnar’s opinion may well create a Polish tragedy for the nationals of his own country who are presently facing expulsion from the UK and will be deprived of enhanced protection merely because they do not possess permanent residence. Like countless others scattered all over the EU, they will not be able to confidently claim scelestus europeus sum and make national authorities nod which will surely laugh in response instead.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Citizens Directive, Citizenship and Nationality, CJEU, Deportation, Enhanced Protection, Germany, Nationality, Permanent Residence, Proportionality, UKSC and tagged , , , , , , . Bookmark the permalink.

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