Maria Haag, PhD Researcher, European University Institute (Florence, Italy) & Michigan Grotius Research Scholar, University of Michigan Law School (Ann Arbor, Michigan)
Background
Five years ago, the CJEU delivered its infamous Grand Chamber
decision in C-34/09 Ruiz
Zambrano. It held that “Article 20 TFEU precludes national measures
which have the effect of depriving citizens of the Union of the genuine
enjoyment of the substance of the rights conferred by virtue of their status as
citizens of the Union” (para 42, emphasis added). This 'genuine enjoyment'-protection
had two consequences. First, Union citizens could rely on Article 20 TFEU
against their Member State of nationality without having previously made use of
their rights to free movement and thus bypassing the Court's general lack of
jurisdiction in 'purely internal' situations. Secondly, Member States were
precluded from denying a right of residence to third-country national ('TCN')
parents or caretakers of minor citizens of that Member State, as these children
would otherwise be forced to leave the territory of the EU and thus no longer
able to make use of the rights granted by Union citizenship.
Shortly after the delivery of this ground-breaking judgment, the
Court of Justice proceeded to interpret Ruiz
Zambrano very narrowly in a series of cases (C-434/09 McCarthy,
C-256/11 Dereci
and Others, C-40/11 Iida,
C-356&357/11 O.
and S., C-87/12 Ymeraga
and Others, C‑86/12 Alokpa
and Moudoulou and C-115/15 NA)
leading many to wonder about the original significance of the Ruiz Zambrano
decision. In contrast to Ruiz Zambrano, these subsequent cases mostly concerned
the significance of Article 20 TFEU in a host Member State. The Court held that
the applicants fell outside the scope of Article 20, even if they had never
moved to another Member State, i.e. had been born in a Member State other than
their Member State of nationality and had never left. The most recent cases –
C-304/14 CS
and C-165/14 Rendón
Marín – however, Ruiz Zambrano decision, fully address the right under
Article 20 TFEU in the home Member State. On the 13th of September 2016, the
Grand Chamber delivered these two decisions in which it considered the effect of
a criminal record of a TCN parent on his or her derived residence right under
Article 20 TFEU and to what extent this right can be derogated on grounds of
public policy or public security.
C-304/14 CS: facts and judgment
The case in CS concerned a
Moroccan national, who resided in the UK together with her British national
son. In 2012, she was convicted of a criminal offence and given a prison
sentence of 12 months. Following her conviction, she was notified of her
deportation liability. Her subsequent application for asylum was denied. Upon
her appeal, the First-tier Tribunal (Immigration and Asylum Chamber) found that
her deportation would violate her child's rights under Article 20 TFEU. The
Home Secretary was granted permission to appeal this decision before the Upper
Tribunal, which asked the CJEU, under which circumstances the expulsion of a TCN
caretaker of a Union citizen could be permitted under EU law and whether
Article 27 and 28 of the Directive
2004/38 (the ‘citizens’ Directive’, which sets out the main rules on EU
citizens who move to another Member State) had any effect in this case.
In its two-part decision, the Court firstly answered the question
whether a TCN parent of a Union citizen has a derived right of residence in the
home Member State under Article 20 TFEU and, secondly, if such a right can be
limited on grounds of public policy or public security.
The Court first firmly restated its holding in Ruiz Zambrano. It explained that Article 20 TFEU "precludes
national measures which have the effect of depriving Union citizens of the
genuine enjoyment of the substance of the rights conferred by virtue of their
status as Union citizens" (para 26; citing Ruiz Zambrano para 42). Furthermore, this means that "a right
of residence must … be granted to a third-country national who is a family
member of [a minor Union citizen] since the effectiveness of citizenship of the
Union would otherwise be undermined, if, as a consequence of refusal of such a
right that citizen would be obliged in practice to leave the territory of the
European Union as whole" (para 29). CS thus had a derived right of
residence under Article 20 TFEU in her son's home Member State.
Secondly, the Court held that, as a general rule, such a derived
residence right can be derogated for reasons of public policy or public
security: "where the exclusion decision is founded on the existence of a
genuine, present and sufficiently serious threat to the requirements of public
policy or of public security … that decision could be consistent with EU
law" (para 40, emphasis added). However, a deportation decision cannot be
made "automatically on the basis solely of the criminal record of the
person concerned" (para 41). Thus the UK legislation at issue, which
obliges the Home Secretary to make a deportation order of any non-national who
is sentenced to a period of imprisonment of 12 months or more, establishes
"a systematic and automatic link between the criminal conviction of a
person … and the expulsion measure" (para 44) and therefore violates EU
law. Instead, it is for the national courts to weigh up "the personal
conduct of the individual concerned, the length and legality of his residence
on the territory of the Member State concerned, the nature and gravity of the
offence committed, the extent to which the person concerned is currently a danger
to society, the age of the child at issue and his state of health, as well as
his economic and family situation" (para 42, emphasis added).
Furthermore, derogations for reasons of 'public policy' or 'public
security' must be interpreted strictly and decisions are subject to review by
the EU institutions (para 37). Lastly, and most notably, the assessment of the
individual situation must take account of the principle of proportionality and
the rights protected in the Charter of Fundamental Rights of the European Union
('CFREU'), especially Article 7 on the right to respect of private and family
life and Article 24(2) on the obligation of consideration of the child's best
interests (paras 48 and 49).
C-165/14 Rendón Marín: facts and judgment
The facts in Rendón Marín
are very similar to the ones in CS and essentially raise the same question, presumably
why the Court decided these cases on the same day and why Advocate General
Szpunar did not give separate opinions in these cases, but combined the two. Rendón
Marín concerned a Colombian national father, who lived in Spain together with
his Spanish national son and his Polish national daughter. His application for
a residence permit was rejected due to his criminal record. The crucial
difference between the facts of the two cases is that Mr Rendón Marín has a
Union citizen daughter who lives in a host Member State and a son who lives in
his home Member State. There thus exists a cross-border element in the
situation of his daughter, but not in his son's (For further discussion on the
cross-border element, see C-200/02 Zhu
and Chen, especially para 19.).
The part of the Court's decision concerning the son's circumstances
– a Spanish national in Spain – is almost identical to the Court's judgment in CS. In fact, some of the paragraphs can
be found in exactly the same wording in both decisions (the two cases also had
the same rapporteur, Allan Rosas). Interestingly, the Court in Rendón Marín mentioned the possibility
of moving to Poland, as this is the Member State of nationality of Mr Rendón
Marín's daughter. Whilst the Court noted the applicant's objection that the
family had no ties to Poland, it did not go into this discussion. (See, in
contrast, footnote 109 in Advocate General Szpunar's Opinion in CS and Rendón Marín. For more on this, see also
Advocate General Wathelet's Opinion in NA,
paras 112-117.) Here the Court simply holds that "it is for the referring
court to check whether … the parent who is the sole carer of his children, may
in fact enjoy the derived right to go with them to Poland and reside with them
there" (para 79, citing Alokpa and
Moudoulou paras 34-35). The Court therefore did not deny that moving to
Poland could be a possible solution in case of the father's deportation from
Spain.
As for the legal status of the daughter, the Court held that, as a
Polish national and Union citizen, she could rely on Article 21 TFEU and the Directive
2004/38 to grant her a right of residence in Spain (para 44). Furthermore, the
Court stated that if the daughter fulfils the conditions laid down under
Article 7(1) Directive 2004/38 (i.e. having sufficient resources and
comprehensive health insurance) then the derived right of residence of Mr
Rendón Marín, her father and sole caretaker, cannot be refused (para 53).
Whilst this derived right of residence can be limited for reasons of public
policy or public security (para 57), EU law precludes such limitations on
"grounds of a general, preventive nature" (para 61). Instead, it is
for the national courts to do a similar weighing-up exercise as laid out in CS (see Rendón Marín, paras 59-66). Derogations from derived rights of
residence on the basis of Article 20 TFEU and Article 21 TFEU thus presumably have
to withstand the same test.
Comment
After a longer period of silence on this issue, the Court in these
cases seems at the very least willing to explore the scope of Ruiz Zambrano. (The Court should soon
decide another case, Chavez-Vilchez,
which raises some further important questions about the scope of that judgment).
The two recent judgments, whilst they in some sense appear to diminish the
scope of Ruiz Zambrano even further,
can also be seen as a restatement of the fundamental significance of the
original judgment.
The cases following the Ruiz
Zambrano decision made it very clear that protection under Article 20 TFEU
is only applicable to a very small number of people in "very specific
situations" (Rendón Marín para
74; CS para 29): essentially only to minors
who reside with their TCN parents in their home Member State. CS and Rendón Marín both confirm this, but also clarify that a very high
level of protection is granted to those Union citizens who fall within the
scope of the 'Ruiz Zambrano-protection'.
In fact, the substantive protection against expulsion is equivalent to that of
EU citizens (and their family members) who move to another Member State (the
Court refers to concepts found in the EU citizens’ Directive and its
predecessors, as well as relevant case law), although it is not clear if the
same procedural protection applies.
The Court certainly does not exclude the possibility that "in
exceptional circumstances" (CS para
50) a criminal and dangerous parent who poses a threat to a Member State's
public policy or public security could be deported. Even if this means that his
or her Union citizen children are forced to leave EU territory and thus
deprived of the genuine enjoyment of their EU citizenship rights. Nevertheless,
the Court insists on a very stringent test before such a decision can be taken.
Most notably, the Court refers to the EU's Charter of Fundamental
Rights and stresses the fact that a deportation decision needs to take account
of Article 7 and Article 24(2) of the Charter (see CS paras 36 and 48; Rendón
Marín paras 66 and 85). In Dereci,
the Court had previously held that "if the referring court considers …
that the situation of the applicants in the main proceedings is covered by
European Union law, it must examine whether the refusal of their right of
residence undermines the right to respect for private and family life provided
for in Article 7 of the Charter" (Dereci,
para 72). In that case the Court had decided that the circumstances fell
outside the scope of EU law, and that it was therefore beyond its jurisdiction
to consider a violation of the Charter. In both CS and Rendón Marín, the
Court found that the applicants' circumstances fell within the scope of EU law
and thus that the Charter applied.
It is also interesting to compare the protection granted in C-135/08
Rottmann
against the deprivation of the legal status of Union citizenship altogether and
the protection granted in CS and Rendón Marín against being deprived of
the genuine enjoyment of the Union citizenship rights by means of a parent’s
expulsion to a non-EU state. Whereas in Rottmann,
the Court held that a decision to withdraw someone's nationality needs to
respect the principle of proportionality (Rottmann,
para 59), in CS and Rendón Marín it established a list of
criteria that need to be observed. Curiously, the Rottmann-test therefore appears to be narrower than the one
established in CS and Rendon Marin, even if the potential
outcome in circumstances like Rottmann,
i.e. statelessness, might be much more serious for the individual concerned.
In its decision in CS, the
Court cites the European Court of Human Rights (ECtHR) judgment in Jeunesse v the Netherlands.
The EU Court states in paragraph 49:
"[A]ccount is to be taken of the child's
best interests when weighing up the interests involved. Particular attention
must be paid to his age, his situation in the Member State concerned and the
extent to which he is dependent on the parent (see, to this effect, ECtHR, 3
October 2014, Jeunesse v. the Netherlands, CE:ECHR:2014:1003JUD001273819,
§118)."
Jeunesse v. the Netherlands, which was decided by the Strasbourg court in 2014, concerned a
Surinamese national, who lived with her Dutch national husband and children in
the Netherlands without a valid residence permit. The applicant argued that the
refusal to allow her to reside in the Netherlands infringed her right to
respect of her family life under Article 8 ECHR. The facts of this case are
very similar to the ones in Dereci,
in which the Court of Justice held that such a denial of residence right did
not conflict with EU law. The ECtHR, however, came to the conclusion that the
Dutch authorities had failed "to secure the applicant's right to respect
for her family life as projected by Article 8 of the Convention" (Jeunesse v the Netherlands, §122).
So what does the reference to this judgment mean? First and
foremost, the CJEU clarifies and stresses the utmost importance of taking
account of the children's best interests in these deportation decisions.
Secondly, it signals the Court's commitment to taking the fundamental rights of
those who fall within the Ruiz Zambrano-protection
very seriously.
Finally, the fact that the Court treats the situation of the
daughter and the son separately in Rendón
Marín reaffirms the Court's findings in previous cases that a Union citizen
in a host Member State first has to rely on Article 21 TFEU before Article 20
can be applied. In the NA judgment,
which the Court delivered at the end of June 2016, it held that one first has
to examine whether the citizen and their TCN caretaker have a right of
residence under secondary EU law. Only if there is no such right, can Article
20 TFEU apply.
The NA case concerned a
Pakistani national mother who lived in the UK with her German national children
where she was refused a right of residence. The Court decided that because it
had already held that both the children and their TCN mother had a right of
residence in the host Member State under Article 12 of Regulation
No. 1612/68 (paras 52-68), which guarantees children of current and former
workers the right to access to education in the host Member State, with corollary
residence rights for those children and their parents (for more, see CJEU
decisions in C-480/08 Teixeira
and C-310/08 Ibrahim).
Article 20 TFEU did not confer a right of residence in the host Member State.
It is clear that the protection under Article 20 TFEU is one of last resort.
Whilst the Court in NA and Rendón Marín does not directly rule out
the possibility that the Ruiz Zambrano-protection
might apply in a host Member State, it now almost seems impossible. It appears
that that protection can only be granted by the home Member State.
Barnard & Peers: chapter 13
JHA4: chapter I:6
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