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.