Citizens’ Directive: Permanent Residence is a Prerequisite of Eligibility for Enhanced Protection

B and Vomero, Joined Cases C‑316/16 and C‑424/16, ECLI:EU:C:2018:256

As discussed in an earlier postB and Vomero provided the CJEU with a fresh opportunity to rectify earlier mistakes – chances that were allegedly “squandered” in the cases of Rendón Marín (C‑165/14, EU:C:2016:675) and CS (Morocco) (C-304/14, EU:C:2016:674) – by taking EU citizenship to its full potential. But it is disappointing that in the present cases the court has instead held that the possession of permanent residence is mandatory in order to qualify for enhanced protection against expulsion under free movement law and the Citizens’ Directive (Directive 2004/38/EC). Vomero is a case with a complex procedural history and it concerned a reference to the CJEU from the UK Supreme Court which granted permission to appeal in February 2013 but stayed proceedings because references were already pending in Onuekwere (C-378/12, EU:C:2014:13) and MG (Portugal) (C-400/12, EU:C:2014:9). Enhanced protection means that imperative grounds of public security are required for expulsion whereas permanent residence alone means that expulsion can be resisted on serious grounds of public security and public policy. Vomero is a recidivist offender from Italy and his crimes include manslaughter, assaulting the police, possession of a bladed article and battery, and burglary and theft. He entered the UK more than 30 years ago after meeting his British partner in France. They got married and jointly purchased property and had five children but their marriage failed.

Thereafter, Vomero moved into accommodation with Edward Mitchell and killed him by battering him on the head with weapons, including a hammer, and strangling him 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 the Directive 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). If not, then the Supreme Court sought clarification of the expression “the previous ten years” and, in particular, to determine whether periods of absence and of imprisonment are capable of being regarded as periods of residence for the purposes of calculating those ten years. 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.

Initially, B was successful before the Verwaltungsgericht Karlsruhe (Administrative Court, Karlsruhe) in September 2015. Upon the Land of Baden-Württemberg’s further 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.

The Court of Justice (Grand Chamber)

Holding a right of permanent residence is a prerequisite of eligibility for enhanced protection against expulsion. Moreover the 10 years’ residence requirement, which is also mandatory for enhanced protection, may be satisfied where an overall assessment of the EU citizen’s situation leads to the conclusion that despite any detention the integrative links between the citizen and the host member state have not been broken.

(i) SSHD v Vomero

In line with the judgments in Tsakouridis (C‑145/09, EU:C:2010:708) and Ziebell (C‑371/08, EU:C:2011:809) the court recalled that as identified by recital 24 the Directive creates a system of protection against expulsion measures which is based on the degree of integration of those persons in the host member state. The gradual increase in protection is such that the greater the degree of integration of EU citizens and their family members in the host member state, the greater the guarantees against expulsion they enjoy. The wording and the structure of article 28 is such that the protection against expulsion gradually increases in proportion to the degree of integration of the EU citizen in the host member state. An expulsion decision on public policy or public security grounds must account for length of residence, age, state of health, family and economic situation, social and cultural integration in the host member state and the extent of links with the country of origin.

Serious grounds of public policy or public security are required to expel those in possession of a permanent right of residence under article 16(1). Imperative grounds of public security are required to expel those with 10 years’ residence. The court held that the lower level of protection generated by legal residence in the host member state for a continuous period of five years is a steppingstone to the enhanced protection regime connected to 10 years’ residence. In Tsakouridis the court had 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 “considerably stricter” than the test of “serious grounds” envisaged by article 28(2) which requires five years’ previous residence.

As discussed in Ziolkowski and Szeja, (C‑424/10 and C‑425/10, EU:C:2011:866), the Directive established a gradual system in relation to the right of residence in the host member state. The discussion also encompassed the point expressly made in recital 18 that right of permanent residence should not be subject to any further conditions, with the aim of it being a genuine vehicle for integration into the host member state’s society.

The court’s interpretation of enhanced protection was also supported by the fact that the Directive introduced a gradual system as regards residence rights in the host member state. The Directive unifies earlier EU law instruments and culminates in the right of permanent residence. For periods of residence of longer than three months in the host member state, the system demands that the EU citizen must be economically active in order not to become an unreasonable burden on the social assistance system. Legal residence of five years in the host member state results in a permanent right of residence and these conditions are removed. Accordingly, an EU citizen without the right of permanent residence may be expelled if he becomes an unreasonable burden on the host member state’s social assistance system.

The CJEU agreed with AG Szpunar’s analysis at paras 57 and 58 of his opinion and held that an EU citizen who may be expelled if he becomes an unreasonable burden – because he does not have a right of permanent residence – cannot simultaneously enjoy the benefits of enhanced protection whereby his expulsion could be authorised only on “imperative grounds” of public security.

Recital 17 states the right of permanent residence is a key element in promoting social cohesion and was provided for by the Directive in order to strengthen the feeling of EU citizenship. As explained in Onuekwere, the EU legislature thus made the acquisition of permanent residence under article 16(1) subject to the integration of the EU citizen in the host member state.

Integration is a precondition of the acquisition of the right of permanent residence. It is based not only on territorial and temporal factors but also on qualitative elements, relating to the degree of melding into the host society. “Legal residence” implied by the terms “have resided legally” in article 16(1) needs to be construed as meaning a period of residence which complies with the Directive’s overall framework and conditions, particularly those set out in article 7(1). The CJEU therefore held that:

60. A Union citizen who has not acquired the right to reside permanently in the host member state because he has not satisfied those conditions and who cannot, therefore, rely on the level of protection against expulsion guaranteed by article 28(2) of Directive 2004/38 cannot, a fortiori, enjoy the considerably enhanced level of protection against expulsion provided for in article 28(3)(a).

Accordingly it is necessary to interpret article 28(3)(a) to mean that permanent residence within the meaning of article 16 and article 28(2) of the Directive must be achieved and forms a “prerequisite of eligibility” in relation to the enjoyment of enhanced protection. In light of that finding, the court found it unnecessary to answer the other questions referred by the Supreme Court.

(ii) B v Land Baden-Württemberg

Despite the fact that recitals 23 and 24 mention special protection for those who are genuinely integrated into the host society, especially in relation to persons who were born there and have spent their whole life there, it is nonetheless necessary for the person holding permanent residence, as stipulated by article 28(3), to reside in the host member state for the 10 years preceding the expulsion decision. Applying MG (Portugal), the 10-year period of residence must be continuous and must be calculated by counting back.

As observed in Tsakouridis the Directive, under article 28(3)(a), is silent about the circumstances that are capable of interrupting the period of 10 years’ residence needed to qualify for enhanced protection. The court held that an overall assessment must systematically be made of the situation of the person concerned at the precise time when the question of expulsion arises. When conducting the overall assessment in contemplation, national authorities must take all the relevant factors into account in each individual case and must ascertain whether the periods of absence from the host member state involved the transfer to another state of the centre of the personal, family or occupational interests of the person concerned.

As regards periods of imprisonment, referring to the approach in MG, the court held that so as to determine whether those periods have broken the integrative links previously forged with the host society, it is necessary to conduct an overall assessment of the situation of the person concerned at the precise time when the question of expulsion arises. Moreover, the CJEU found that the fact that someone was imprisoned in the host member state does not produce the effect of automatically breaking the integrative links that he had previously forged with that state and therefore does not automatically deprive him of enhanced protection.

The assessment must account for the strength of the integrative links forged with the host society prior to imprisonment and the nature of the offence, the circumstances surrounding the commission of the offence and the behaviour of the offender during the period imprisonment. Reiterating its approach in Tsakouridis the court held that:

75. On that last point, it should also be borne in mind that, as the court has already pointed out, the social rehabilitation of the Union citizen in the state in which he has become genuinely integrated is not only in his interest but also in that of the European Union in general.

On the final issue, the court held that the question whether a person satisfies the condition of having “resided in the host member state for the previous ten years” must be assessed at the date on which the initial expulsion decision is adopted. On the other hand, where an expulsion decision is adopted but its enforcement is deferred for a certain period of time, it may be necessary, where appropriate, to carry out a fresh assessment of whether the person concerned represents a genuine and present threat to public security.

Particularly, applying the second subparagraph of article 27(2) of the Directive, taking any expulsion measure is generally conditional on the requirement that the conduct of the person concerned must represent a genuine and present threat affecting one of the fundamental interests of society or of the host member state.

In reviewing the legality of an expulsion measure taken against a national of another member state, facts pointing to the cessation or the substantial diminution of the presence of the threat must be given due consideration by the national court. As demonstrated by Orfanopoulos and Oliveri (C‑482/01 and C‑493/01, EU:C:2004:262) and Ziebell that is all the more so where a lengthy period has elapsed between the date of the expulsion order and the review of that decision by the competent court.

Comment 

Notably, when making the order of reference the Supreme Court had taken a different view to the one espoused by the CJEU in the present judgment. The referring court observed that neither article 28(3)(a) nor the existing case law picked out any need, or condition precedent, for the acquisition of a right of permanent residence prior to an EU citizen invoking enhanced protection from expulsion. In that regard, Lord Mance explained at para 27 that a majority of the Justices preferred the view that possession of a right of permanent residence is not needed in order to enjoy enhanced protection under 28(3)(a) of the Directive. The minority regarded the position as unclear.

Therefore, in that light, this is quite a helpful ruling for the Home Office. It will assist the government to maximise the reach of its infamous hostile environment policy by taking it to commanding new heights during times of Brexit uncertainty. In order to enforce mass deportations of EU nationals, the Home Office will no doubt pounce on the new point that permanent residence is a condition precedent for the enjoyment of enhanced protection. Clearly, Michal Meduna’s theory is now definitely in ruins because it is no longer possible to invoke the maxim scelestus europeus sum or “I am a European offender” to protect the fundamental rights of EU citizens and miraculously escape deportation. Consequently, we do indeed find ourselves in a Greek tragedy.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in CFR, Citizens Directive, Citizenship and Nationality, CJEU, Deportation, European Union, Free Movement, Immigration Act 2014, Immigration Act 2016, Permanent Residence, UKSC and tagged , , , . Bookmark the permalink.

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