LIMITATIONS ON THE
FREE MOVEMENT OF PERSONS
·
Articles 21 TFEU states
that the right of free movement is “subject
to the limitations and conditions laid down in the Treaties and by the measures
adopted to give them effect”.
·
Further guidance
is given in Directive 2004/38, which repealed Directive 64/221.
1. GENERAL PRINCIPLES
·
Directive 2004/38 only
applies to restrictions placed on the movement of ‘Union citizens and their family members’. See Nouazli (Court of Appeal)
for an example of public policy measures taken against a Citizen’s family
member.
·
It does not apply
to measures taken against non-EU nationals (who are unrelated to a Union
Citizen) – Dem'Yanenko,
involving a Ukrainian national.
‘Measures’
·
Member States are
allowed to impose ‘measures’ which restrict free movement. These include:
o
refusal of entry (Van Duyn);
o
refusal of exit (Jipa;
Gaydarov; Aladzhov; Byankov; Gough & Others);
o deportation / expulsion (R v Bouchereau; Bonsignore; Calfa; Tsakouridis);
o
refusal to issue a
residence permit (Adoui & Cornuaille,
Jany & Others);
o
internal
restrictions (Rutili; Otieza Olazabal).
·
The fact that
Member States cannot refuse entry to, or expel from, national territory their
own nationals does not prevent them from refusing entry to, or expelling
from, national territory other States’ nationals (Pereira Roque).
·
One situation in
which States can take action against their own nationals is a refusal of exit.
‘Proportionality’
·
Public policy or security measures must comply with the principle of
‘proportionality’ (Article 27(2)).
·
Deportation
because of failure to comply with immigration formalities would be
disproportionate (Oulane).
·
An absolute and
indefinite prohibition on a Citizen leaving his or her home State would be
disproportionate (Byankov).
·
In cases where
deportation is contemplated following a criminal conviction, account must be
taken of the:
o nature and seriousness of the offence committed;
o duration of residence in the host State;
o period which has passed since the offence was committed;
o conduct of the person concerned during that period;
o ‘solidity of the social, cultural and family ties with the host State’ (Tsakouridis).
‘Personal Conduct’
·
Public policy or security measures must be based ‘exclusively’ on
the ‘personal conduct’ of the individual concerned’ (Article 27(2)). This
means that:
o
Member States may
not take measures based on “general considerations” (Rutili).
o
Member States cannot
take measures against an individual on the ground that it will serve as an
example to others (Bonsignore).
o
Automatic deportation following conviction of a criminal offence is not
permissible. Member States must take account of the individual’s
‘personal conduct’ which led to the conviction (Calfa; Orfanopoulos &
Oliveri).
o
Present membership
of an ‘objectionable’ organisation may constitute ‘personal conduct’ (Van Duyn, Kraus).
‘Previous Criminal Convictions’
· Previous criminal convictions must not ‘in themselves’ constitute
grounds for the taking of measures (Article 27(2)).
· They may only be taken into account “in so far as the circumstances
which gave rise to that conviction are evidence of personal conduct
constituting a present threat” (R v
Bouchereau).
· This is possible in 2 situations:
· Where there is a “propensity to act in the same way in the future”;
· On the basis of “past conduct alone”.
· One example of the latter is Marchon
(convicted of trafficking 4.5kg of heroin worth £450,000 and
sentenced to 11 years’ imprisonment). Contrast
with Monteil and Proll. Although both had previous convictions there was no evidence
that either was a “present” threat owing to significant changes in their circumstances.
2. PUBLIC POLICY, SECURITY AND HEALTH
‘Public policy’
·
‘Public policy’ presupposes
a “genuine and serious threat” to the “fundamental interests” of society (Article
27(2); R v Bouchereau).
·
It is usually, but
not necessarily, concerned with criminal activities (Van Duyn).
· The Member State must impose “repressive” measures, such as criminal penalties,
on its own nationals before it can invoke ‘public policy’ measures against
nationals of another Member State (Adoui
& Cornuaille, Jany & Others).
‘Public security’
·
‘Public security’ has
been invoked in three cases:
o
Tsakouridis, involving drug trafficking. This “poses
a threat to health, safety and the quality of life of citizens of the Union,
and to the legal economy, stability and security of the Member States”.
o
P.I., involving the sexual exploitation of children. This
constitutes a “particularly serious threat to
one of the fundamental interests of society, which might pose a direct threat
to the calm and physical security of the population”.
‘Public health’
·
‘Public health’ measures
may be taken ‘against those suffering from ‘diseases with epidemic potential’ and ‘other
infectious diseases or contagious parasitic diseases’ (Article 29).
3. PROCEDURAL SAFEGUARDS
Protection against expulsion
·
Article 28(1) lists various
factors which Member States must take into account before taking an
expulsion decision:
o
how long the person has resided on its territory;
o
his/her age;
o
his/her state of health;
o
his/her family and economic situation;
o
his/her social and cultural integration into the host
Member State;
o
the extent of his/her links with the country of origin.
·
The most important
of these is family status, if any (Rutili;
Orfanopoulos & Oliveri). Respect
for family life is protected by the ECHR and the EU’s Charter of Fundamental
Rights.
·
Article 28(2): Those with a
right of permanent residence (acquired after 5 years’ continuous legal residence),
may only be expelled on ‘serious grounds’ of public policy or security.
o
‘Serious grounds’
refers to those convicted of crimes of violence (B, Court of Appeal).
· Article 28(3): Those who have resided in the host State for the ‘previous 10 years’ can
only be expelled on ‘imperative grounds’ of
public security.
o
‘Imperative grounds’ presupposes “a
particularly high degree of seriousness” (Tsakouridis).
o
Time spent in
prison does not count towards ‘residence’ (M.G.).
o
The ‘10 years’ is
determined by “counting back” from
the date of the expulsion decision (M.G.).
o
The ‘10 years’
should, in principle, be “continuous” (M.G.).
In determining whether the 10 year period has been interrupted by absences, the
host State should take “all the relevant factors into consideration in each
individual case”, including:
§ the duration of each period of absence,
§ the cumulative duration and the frequency of those absences,
§ the reason(s) why the person concerned left the host State.
o
Ultimately, it
must be “ascertained whether those absences involve the transfer to another
State of the centre of the personal, family or occupational interests of the
person concerned” (Tsakouridis).
· Article 33(1): Deportation must not be an ‘automatic consequence’ of a criminal
conviction.
· Article 33(2): Expulsion orders should not be enforced more than 2 years after
being issued without a ‘check’ to establish whether the person is ‘currently and genuinely’ a threat.
Notification
·
Article 30: A person subject
to measures must be notified ‘in writing’ and ‘in
such a way that they are able to comprehend its content and the implications
for them’. The State must give the individual a “precise
and comprehensive statement of the grounds for the decision, to enable him to
take effective steps to prepare his defence” (Rutili).
·
This is the case
unless notification would be ‘contrary to the interests of State security’ (Article 30(2)). The leading case is Z.Z. (2013). According to the ECJ:
o
Article 30(2) must
be interpreted “strictly”.
o
An “appropriate
balance” must be struck “between the requirements flowing from State security
and the requirements of the right to effective judicial protection”.
§
On one hand, full
disclosure of evidence may compromise State security in certain cases in “a
direct and specific manner” e.g. by revealing the identity of undercover
agents.
§
On the other hand,
the “fundamental right to an effective legal remedy” implies that litigants
should be able to examine, and to comment on, all the documents or observations
submitted to the court.
o
Therefore, the
person concerned must be “informed of the essence of the grounds” which
constitute the basis of the expulsion decision” “in a manner which takes due
account of the necessary confidentiality of the evidence”.
Appeals and Reviews
·
Article 31: Appeals and/or
Judicial review procedures must be made available. “All steps must be taken to ensure that the safeguard of the right of
appeal is in fact available” (Royer).
·
The review body must “perform its duties in absolute independence” and not “be directly or
indirectly subject in the exercise of its duties to any control by the
authority empowered to take the measures provided for in the directive” (i.e.
the government) (Gallagher).
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