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’.
The first part (A) of the Opinion of the Advocate General is really helpful and convincing:
39. […] the question whether an offender, by his conduct, constitutes a threat to public security therefore depends not only on the gravity of the offence committed, which is indicated by the penalty incurred or imposed, but above all on its nature.
Having distinguished the nature of the act from the severity of punishment, AG Bot distinguished Tsakouridis (C-145/09) and failed to find that incest would fall within the meaning of ‘imperative grounds of public security’ in the sense of Article 28(3)(a) of the directive. AG Bot emphasized that ‘there is no such thing as an offence without risk of reoffending [underlining that] in the light of the threat to public security, it is rather the very nature of that threat which must be taken into account’ (para. 40). The risk of repeated incest is not such a threat.
So far so good. The interesting part is part B of the Opinion. Minded to allow the expulsion of Mr. I., AG Bot moves on to the newly-discovered assumptions behind the ten-year permanent residence term in the citizenship directive, presuming that permanent residence is a reward for ‘genuine integration’ into the society of the host Member State. This ‘genuine integration’ does not happen, in the eyes of the AG, when the step-father has sex with his step daughter.
49. Like the Netherlands Government, I think that Article 28(3) of Directive 2004/38 does not apply to the case of Mr I., since his conduct and the way in which the acts were committed show that the true position is that he was not actually integrated and cannot, therefore, benefit from the enhanced protection provided for in that provision.
For the Advocate General, the rationale of the Directive provides only for a presumption of integration which can be rebutted. Therefore:
60. Although the integration of a Union citizen is, in fact, based on territorial and time factors, it is also based on qualitative elements. Now, it seems clear to me that Mr I.’s conduct, which constitutes a serious disturbance of public policy, shows a total lack of desire to integrate into the society in which he finds himself and some of whose fundamental values he so conscientiously disregarded for years. Today he relies on the consequences of having completed a period of 10 years which was not interrupted because his conduct remained hidden owing to the physical and moral violence horribly exercised on the victim for years.
61. An offence of that nature, just because it has lasted a long time, cannot create a right. Furthermore, Directive 2004/38 itself provides, in Article 35, that the Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by the directive in the case of abuse of rights or fraud. In this case, it should be for the Court to draw the appropriate conclusions from such fraud.
62. To acknowledge that Mr I. may derive from his criminal conduct the right to the enhanced protection provided for in Article 28(2) and (3) of that directive would, in my view, conflict with the values on which citizenship of the Union is based.
This reasoning is innovative, not to say strange. The directive indeed mentions ‘integration into society’ in recital 24 of the preamble as the main reason behind the status of permanent residence. However, the text of the instrument does not point into the direction of the ‘rebuttal’ of such a ‘presumption’. On the contrary, the principle of non-discrimination on the basis of nationality does not allow Member States even to try to go against it: the main goal of the permanent residence status is to make expulsions of EU citizens holding such a status almost impossible no matter what. They might not know Maltese, be always late at meetings, they might not go to church on Sunday and dislike the local snack of haggis, or, for that matter, can even rape their daughter – all these facts are totally unrelated to the meaning of integration into society in the sense of the directive. Reading the directive with this goal in mind makes it crystal clear that the instrument is not open for any additional grounds of expulsion to be introduced next to the ‘imperative grounds of public security’.
What AG Bot’s Opinion amounts to, is to suggest to read into the text of the directive, which is designed with a clear goal of shaping a meaningful status of permanent residence for EU citizens in mind, a new exception which can potentially undermine the purpose and the spirit of the directive and, consequently, completely fails to convince. Apparently, committing a crime which does not fall under ‘imperative grounds of public security’ is a sign of ‘total lack of desire to integrate into the society [of the host Member State]’ making the protections against expulsion in Directive 2004/38 inapplicable. This obviously amounts to a suggestion that any foreign criminal is not supposed to be protected, potentially depriving Article 28 of the directive of any effet utile. Indeed, one can only be in need of protection against expulsion if something extraordinary happens. Marktbürgers leading a normal suburban life will never need this article. What it is designed to cover, are extraordinary, not ordinary matters. Probably the most common of these is an irrational desire of states to send away criminals who do not represent an imperative threat to public security across a physically non-existent border. While this desire is probably understandable from a purely irrational standpoint, rationally, tolerating is unwise.
First of all, a criminal not satisfying the ‘imperative grounds of public security’ test is probably not that dangerous. If he is, however, the best way to deal with such danger is to try to deploy all the instruments of the law which would actually diminish the danger which he represents.
Secondly, sending such a person away certainly fails to meet this goal: it results either in exporting crime, or, at best, committing an act deprived of any sense whatsoever, since in the Union where internal borders are non-existent, the person in question is always free to return.
Thirdly, the very idea of integration in the directive is understood through the prism of social facts and prohibition of discrimination on the basis of nationality – not through the prism of cultural exceptionalism of a particular nation (see, e.g. Dora Kostakopoulou’s Why Naturalisation? (4 PEPS 2003) for the essence of this approach). There is a grain of common sense in the vision that the directive espouses. The promotion of the ideas of cultural exceptionalism is not only old-fashioned. It is also harmful and outright silly, as I did my best to explain in Mevrouw de Jong (EUI RSCAS 2011/06), using the Dutch naturalisation policy as an example. The understanding of integration based on the recognition of the social facts – the fact that someone lives a life in a particular community she chose, having a network of friends and acquaintances and daily routine, which so much shapes our existence, is a totally different matter. A ‘presumption of integration’ can only be ‘rebutted’ if the first understanding is adopted, i.e. when the state is enabled to sanction some people as ‘sufficiently integrated’ applying meaningless clichés in an unhelpful fashion, since an opposite to such integration is the starting assumption of barbarity and inferiority: ‘Those not from here are not good enough’. The minimal threshold is usually tricky. Forget about the criminals – once a presumption is rebuttable, as AG Bot suggests, what about people without friends? What about unpleasant , what about ugly people? EU citizenship makes this kind of ‘integration thinking’ impossible, as it was designed, from the very beginning, not to allow states to divide incoming EU citizens into classes of ‘good’ and ‘bad’. This is what non-discrimination on the basis of nationality is about: you might not want Dominique Cornouaille tonight, but she is in Belgium to stay, not a worse prostitute than those with the local passport. This is the essence of citizenship (even if it is a Citizenship Without Respect (Jean Monnet Working Paper 08/10)): a president, or a criminal, a super-model, a dumb-head farm boy, or a crippled lazy layabout, we are all by definition good enough in the eyes of the law and there is nothing to rebate: the directive offers protection of our way of life not as a reward, but as a necessary continuation of EU citizenship.
Lastly – and most obviously – who if not the locals are the etalons of integration; the best possible measure of being ‘one of us’? To buy the unconvincing reasoning of AG Bot means to presume that those who never moved states never rape their daughters. And we know perfectly well that at times they do.