Expelling EU Nationals: It’s EU Law, not the HRA

Aidan O’Neill QC

As part of its continuing campaign against the Human Rights Act the Daily Telegraph is once again relying upon the case of Lorenzo Chindamo, an Italian national, as a prime example of how convicted foreign criminals are relying on the Convention rights protected under the Act to prevent their expulsion from the UK after serving their sentence. But as the UK Human Rights blog has pointed out (repeatedly) the decision that it would not be lawful to deport Philip Lawrence’s killer was not made on the basis of his Convention rights, but instead relied upon his EU citizenship rights. It might therefore be worth setting out, for the benefit of all concerned with this issue, what those EU law rights are.

The only lawful basis on which a EU citizen worker, self-employed person or jobseeker (or his family members) may be denied leave to enter or reside in a Member State, or indeed be expelled from the host State in which he has exercised his EU free movement rights in taking up residence, is on the narrowly interpreted public policy or public security grounds set out in Articles 27 and 29 of the Citizenship (Free Movement) Directive 2004/38/EC which consolidates, in a single text, the EU legislation governing the right of EU citizens and their family members to move and reside freely within the territory of the Member States. The remedy of expulsion may be taken only if it is shown to be proportionate, taking into account factors including:

a)           the degree of integration of the persons concerned in the host State;

b)           the length of their residence in the host State;

c)           their ages;

d)           their state of health, family and economic situation; and

e)           the links with their country of origin.

The greater the degree of integration of EU citizens and their family members in the host Member State, the greater will be their protection against expulsion. Thus it would only be in exceptional circumstances that an expulsion measure might lawfully be taken against an EU citizen who has resided for many years in the territory of the host Member State. In view of the emphasis on personal conduct, a desire on the part of the authorities to deter other people from committing similar crimes is not an acceptable basis justifying expulsion. And consideration by the CJEU of such instruments as the UN Convention on the Rights of the Child 1989 would similarly suggest that it would only be in the most exceptional case that a EU citizen who is a minor and whose family resides in the host State might lawfully be expelled to his country of origin.

Having said all that, in a fairly recent – thought little reported – decision Land Baden-Württemberg v Panagiotis Tsakouridis (C‑145/09) of 23 November last year, the Grand Chamber of the CJEU actually upheld the lawfulness/compatibility with the Directive of the expulsion from Germany of an individual of Greek parentage who had been born in Germany and who had lived there for over 30 years – most, if not all, of his life. But for the purposes of German nationality law – which ascribes nationality on the basis of descent rather than on the basis of place of birth – his nationality was Greek and not German. He had been convicted in Germany for drugs related offences and the Grand Chamber of the CJEU held that “imperative grounds of public security” namely the  “war against drugs” were sufficient to allow the German authorities to justify his expulsion from Germany as a matter of EU law.

But proportionality demands that there can be no expulsion of an EU national from another Member State for life. In Criminal Proceedings against Donatella Calfa (C-348/96) the CJEU declared a provision of Greek law which required the imposition of an order of expulsion from Greek territory for life on nationals of other Member States convicted in Greece of drugs offences, to be incompatible with EU law as being a disproportionate interference with the fundamental EU principles in favour of the free movement of persons. Thus the Citizenship (Free Movement) Directive expressly gives any EU citizens (and their family members) who have been excluded from the territory of a Member State the right to submit a fresh application after a reasonable period, and in any event after a three-year period from enforcement of the final exclusion order.

In sum, things are not as unreservedly in favour of the interest of the convicted criminal as the Daily Telegraph might have us believe. The application of the proportionality test does expressly require a weighing up of the rights of the individual against the interests of the wider community. And sometimes, even at a European level, those general interests win.

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