2013 is the European Year of Citizens and so we kick off the New Year with a discussion of one of the more contested aspects of EU citizenship, namely the right of (static) EU citizens to be accompanied by third country national (“TCN”) family members in their own Member State. Specifically, in joined cases C-356/11, C-357/11 O, S & L, decided on 6 December 2012, the Court was asked whether a TCN step-parent could derive a right of residence from the Union citizenship of his step-child
Situated at the interface between EU citizenship, immigration law and the fundamental right to family life, this issue has proved to be a vexing one for the Court of Justice. Continue reading
On 16 October 2012, the CJEU delivered its Grand Chamber judgment in the infringement procedure (Case C-364/10 Hungary v Slovakia) which was initiated by Hungary against Slovakia for refusing the Hungarian President entry into Slovakian territory. It is already quite rare that Member States initiate infringement procedures against each other. Normally the Commission takes up this task, as guardian of the Treaties, but it refused to do so in this case.
Mr Sólyom, the President of Hungary, was invited to a ceremony for the inauguration of a statue of Saint Stephen of Hungary (a Medieval Hungarian King) in the Slovakian town of Komárno. The ceremony was planned for 21 August 2009. 21 August is a sensitive date in Slovakia, since Warsaw Pact troops, among which were Hungarians, invaded Czechoslovakia on 21 August 1968. Therefore, Slovakian authorities found the planned visit inappropriate.
This period around the end of summer breaks is probably a busy time for everyone, so I will keep it short; as always, readers of this blog are very much welcome to point out and discuss some points in more detail in the comments if so desired. In this case, the Court was asked about the content of the obligation to ‘facilitate’, in accordance with national legislation, entry and residence for ‘any other family members’ (set out in Article 3(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely) who are dependants of a Union citizen. For this wider circle of ‘other family members’ (as opposed to the narrow circle of family members set out in Article 2 (2) of the Directive), Member States enjoy a broader margin of discretion and do not have to grant an ‘automatic’ right of entry and residence (para 20). The Court also clarified some matters on the situation of dependence that must be given for such a family member under Article 3 (2), but I’ll focus on the first point for the purpose of this post. Continue reading
Removing persons from a community because of a crime they committed is a common phenomenon in law. In medieval England, sources show that men ‘of particular ill-repute’ or presented for serious crimes were forced to ‘abjure the realm’, sometimes even if they passed the procedure of an ordeal (J Hudson, The Formation of the Common Law, Longman, London 1996, 177). More modern international law renders such a mixture between an immigration measure and criminal punishment somewhat more complex: A state can no longer simply expel its own nationals. Still, for foreigners the question continues to arise whether a crime they committed should exclusively be tackled with the tools of criminal law or whether that crime should be seen as a rupture of the bonds of integration between the foreigner and society, resulting in the foreigner’s expulsion.
This thorny question is raised by the case of P.I. Mr I has lived in Germany since 1987. From 1990 onwards, he comitted acts of sexual coercion, sexual assault and rape on his former partner’s daughter who was 8 years old when the offences began. His acts were only discovered later, because he continuously threatened and isolated his victim. In 2006, he was eventually convicted to a term of imprisonment of seven years. By a decision of 2008, Mr I was ordered to leave the territory and lost the right to enter and reside in Germany.
In the appeal to this decision and the subsequent preliminary reference to the CJEU, the question arose whether the long period of residence should prevent an expulsion or whether the nature and context of the crime Mr I committed called for a different solution. Directive 2004/38 on the right of EU citizens to move and reside freely creates a system substantially based on an ever ‘greater degree of protection against expulsion’, the ‘greater the degree of integration of Union citizens’ becomes (recital 24). For Union citizens who have resided for ‘many years in the territory of the host Member State’, an expulsion measure should only be taken ‘where there are imperative grounds of public security’ (ibid.). Putting these objectives into practice, Article 28 of the Directive requires in its first paragraph that before taking an expulsion decision based on ‘public policy or public security’, factors to be taken into account by a Member State are the period of residence, age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of links with the country of origin of the EU citizen. The second paragraph raises the bar, requiring ‘serious’ grounds of public policy or public security for those Union citizens having gained the right of permanent residence. Finally, the third paragraph provides that in cases where a Union citizen has resided in the host Member State for the previous 10 years, ‘imperative grounds of public security’ must be brought forward to justify an expulsion decision.
In his Opinion in the P.I. case delivered on March 6 this year, AG Bot came up with a curious reading of ‘integration into society’ when dealing with a potential expulsion of an EU citizen who is a permanent resident. In the view of the learned AG committing a crime ‘shows a total lack of desire to integrate into society’ (para. 60), disqualifying the criminal from protection against expulsion (para. 49). This curious reasoning potentially deprives the status of permanent residence under directive 2004/38/EC of much of identifiable meaning.
The Citizenship directive (directive 2004/38/EC) regulates the conditions under which nationals of a Member State can move to and reside freely within the territory of the Member States. In short, the directive introduces a system in which the longer you live in another Member State, the more rights you have. For the Court, the length of residence is proof of a certain level of integration into the society of the host Member State (see for instance case C-158/07 Jacqueline Förster).
Expulsion, for example, is almost impossible after 10 years of prior legal residence. Article 28(3)(a) provides that an expulsion decision may only be taken against Union citizens legally resident for a period of 10 years on ‘imperative grounds of public security, as defined by Member States’. From Tsakouridis (C-145/09) we already know that dealing in drugs can provide such an ‘imperative ground of public security’. But what if we are dealing with the rape of a step-daughter? The issue of the case in P.I basically comes down to the need for the Court to clarify when EU citizen permanent residents can be sent back to their Member State of nationality, which, in turn, necessitates answering the question about the meaning of the ‘imperative grounds of public security’.