Dr Diego Acosta, Reader in European and Migration Law at the University of Bristol; author of The Long-Term Residence Directive as Subsidiary Form of EU Citizenship.An Analysis of Directive 2003/109 (Brill, 2011).
When can Member States expel a third-country national (TCN) holding a long-term residence (LTR) permit and having committed a criminal offence? The ECJ engaged with this important issue in its López Pastuzano ruling on 7 December 2017. It must be recalled at the outset that, according Eurostat data, there are more than 7 million LTRs residing in the EU, with that number set to rise after Brexit. Having participated in the drafting of the written observations on behalf of the claimant before the Court, this post is a short explanation of the case and of its implications.
Directive 2003/109 (which was amended in 2011 to extend to refugees and people with subsidiary protection) provides TCNs who, as well as fulfilling other conditions, have regularly and continuously resided for five years in a Member State with a LTR status. (The UK, Ireland and Denmark opted out of the Directive) The advantages of holding such status, as opposed to a mere temporary permit, can be summarised as accessing equal treatment with nationals in a number of areas (Article 11), the conditional right to reside in another Member State (Articles 14 and 15) and the reinforced protection against expulsion (Article 12).
The ECJ has repeatedly held that the main objective of the Directive is the integration of TCNs who are settled on a long-term basis in the Member States (Cases C-502/10, Singh para 45; C-508/10, Commission v Netherlands para 66; C‑571/10, Kamberaj, para 90). Security of residence is an essential condition for that aim (in real life and in the perception of the Union legislator). If that security would be affected, the main purpose of the Directive would be undermined.
The case at hand dealt with Article 12, which fleshes out the reinforced protection against expulsion by establishing a twofold test. Firstly, Member States may expel a long-term resident “solely” when the individual constitutes an actual and sufficiently serious threat to public policy or public security (Article 12(1)); such a decision “cannot be founded on economic considerations” (Article 12(2)). Secondly, before making such decision, Member States “shall have regard to the following factors: (a) the duration of residence in their territory; (b) the age of the person concerned; (c) the consequences for the person concerned and family members; (d) links with the country of residence or the absence of links with the country of origin” (Article 12(3)).
The facts in the case
The case revolved around the implementation of Article 12 of the Directive in Spain. The claimant, a TCN holding a LTR permit, had resided in Spain since 2008, was working and in a relationship with a Spanish national. His mother and two brothers also resided in Spain. In 2014, he was condemned to a sentence of 12 and 3 months, respectively, following two criminal offences. By virtue of the Spanish Organic Law on Foreigners, in particular its Article 57(2), a third-country national can be expelled if he or she has been condemned for an offence sanctioned by prison of more than a year.
In such scenarios, the authorities cannot take into account aspects comparable to those mentioned in Article 12 (3) of the Directive. These safeguards are taken into consideration in other cases of expulsion but not in case of a prison sentence of more than one year. This national rule applies irrespective of whether the individual TCN holds a LTR permit or not.
The Ruling by the ECJ
The ECJ reminds at the outset that the main objective of the Directive is the integration of TCNs holding a LTR permit, for which they enjoy reinforced protection against expulsion (paras 23-24). The Court reiterates that it is solely when the individual constitutes an actual and sufficiently serious threat to public policy or public security that an expulsion measure might be imposed, but only after having considered each of the aspects in Article 12 (3) of the Directive (paras 25-26).
Indeed, the Directive prohibits the automatic application of an expulsion measure following a condemnatory sentence for a criminal offence, but rather it requires a case by case analysis on the elements mentioned, in particular, in Article 12 (3) (para 27). The words “in particular” are crucial here since it means that the list of elements to be assessed in each individual case in Article 12(3) is not exhaustive and that Member States must also consider other elements. This is the type of personalised proportionality assessment that the ECJ has also favoured in other recent rulings (E.g. Case C-579/13 P and S, discussed here, which concerned integration requirements for long-term residents) and that Member States need to conduct in each single case so as to fulfil their obligations under EU law. Moreover, the ECJ makes reference to its previous ruling in Ziebell (para 27) as discussed below. Spain is consequently found to be in breach of the Directive (para 29).
The ECJ did not engage in a deep analysis of which LTRs can be considered to be an actual and sufficiently serious threat to public policy or public security to begin with. However, its reference to the Ziebell case is central (para 27). In Ziebell, the Court interpreted Article 12 of the Directive on the basis of a comprehensive summary of its case law on Article 14 of EEC-Turkey Association Council Decision 1/80 (which concerns the ‘public policy and public security’ exception to the rules on residence of Turkish workers and their family members).
In brief, the same interpretation of the concept of public policy as in the area of EU nationals applies by analogy; since this is a derogation on a right it needs to be interpreted strictly; measures on grounds of public policy may be taken only following a case-by-case assessment by the competent national authorities showing that the personal conduct of the individual concerned constitutes at present a genuine and sufficiently serious threat to a fundamental interest of society.
In addition to that, the principles of proportionality and the respect for the fundamental rights of the individual, in particular, the right to privacy and family life, must be respected, and “such measures cannot be ordered automatically on general preventive grounds following a criminal conviction or as a means of deterring other foreign nationals from committing offences”. Finally, the existence of “previous criminal convictions is, in itself, irrelevant for justifying an expulsion” and “the same must hold all the more true for a justification relating to the duration of any prison terms to which the individual concerned was sentenced.”
In line with this, national courts and national authorities must take into consideration “factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of the fundamental interest in question (Case C-371/08, Ziebell paras 81-84).
This protection is very similar to the one that EU nationals enjoy under Article 27 of Directive 2004/38 (the EU citizens’ Directive), if not the same. As the ECJ established in the H.T. case (C‑373/13), relating to refugee law (discussed here), whilst EU Member States “retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another … the extent of the protection a society intends to afford to its fundamental interests cannot vary depending on the legal status of the person that undermines those interests” (para 77). This has important implications for all domestic court deciding in cases where a LTR might have committed a criminal offence and when the particular application of the personalised proportionality assessment will be central in deciding the outcome of the residence of the individual or his or her expulsion.
Barnard & Peers: chapter 26
JHA4: chapter I:6
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