Prison time and EU Citizenship: Cases Onuekwere (C-378/12) and M.G. (C-400/12)
Two recent cases dealt with the question whether periods of imprisonment must be taken into account for the calculation of periods of residence under the Citizenship Directive. The cases are interesting for European citizenship law, as they provide further insight into what the ‘fundamental status’ of EU citizenship entails. In particular, the cases are interesting because the Court was required to meander between a more republican reading of citizenship (rights need to be earned) and a liberal reading of citizenship: rights are granted to all citizens even if they are no model citizens.
The decision Onuekwere dealt with the case of a Nigerian citizen who lived with his Irish spouse in the UK. The spouse had acquired permanent residence status after five years of lawful residence according to Art 16 Citizenship Directive. In principle, family members who are third-country nationals can gain permanent residence status as well. However, as Mr Onuekwere had spent parts of the 5-year period in prison, it was questionable whether this right would extend to him.
The Court held that time spend in prison would not count towards the 5-year residence requirement. The Court’s central argument was that the right to permanent residence could not be based on purely formal considerations such as the time physically spent in a Member State’s territory, but must also take into account “qualitative elements, relating to the level of integration in the host Member State” (para 25). Prison sentences express “the non-compliance by the person concerned with the values expressed by the society of the host Member State in its criminal law“. Accordingly, times spent in prison cannot be taken into account for the 5-year period, as this “would clearly be contrary to the aim pursued by that directive in establishing that right of residence.” (para 26)
In M.G., the question was whether a Union citizen who has resided in the UK for longer than 10 years would benefit from the increased protection from expulsion of Art 28(3), even though parts of that period had been spent in prison. In this case, too, the Court found that time spent in prison could not count towards the 10-year residence requirement. However, the Court emphasizes that – following Tsakouridis – the host Member State is still required to perform an overall evaluation of the individual situation to establish whether expulsion is justified.
By excluding time spent in prison, the Court interprets the residence periods prescribed in the Citizenship Directive on the basis of a teleological reduction. The permanent residence status as well as the enhanced protection from expulsion after ten years of residence are conceptualized as rights granted only to individuals that are integrated in the host State’s society in a commendable way. The Court has emphasized, however, that the length of residence is still an important factor in establishing whether expulsion is justified. After all, the spirit of free movement law seems to be that the right to residence is not solely the reward for meritorious behavior; it is supposed to protect even those individuals who are no model citizens, as is for example expressed in the decision Orfanopoulos.