Europe of Human Rights

On 16 January 2014 the CJEU gave a preliminary ruling in the case (C-400/12) concerning the Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Ms G. is a Portuguese national that moved to UK with her husband in April 1998. On 27 August 2009 Ms G. was sentenced to 21 months’ of imprisonment for beating one of her children. On 11 May 2010, while she was still in prison, Ms G. applied to the Secretary of State for a certificate of permanent residence in the United Kingdom. In July 2010, the Secretary of State refused the application and ordered that Ms G. be deported on grounds of public policy and public security. Despite serving her sentence Ms G. was detained in custody. In the deportation decision, the Secretary of State took the view, first, that the enhanced protection against expulsion provided for in Article 28(3)(a) of Directive 2004/38 is dependent on the integration of the Union citizen into the host Member State and that such integration cannot take place while that citizen is in prison. Secondly, the Secretary of State found that Ms G. was not entitled to the intermediate level of protection against expulsion because she had not shown that she had acquired a right of permanent residence and, in any event, there were serious grounds of public policy and public security for expelling her. Thirdly, the Secretary of State found that, a fortiori, Ms G. was not entitled to the basic level of protection against expulsion.

Ms G. lodge an appeal against the decision. The first instance Tribunal found that Ms G. had resided in the United Kingdom for a period of over 10 years prior to the deportation order. However, the Tribunal also found that, in the absence of evidence to show that her husband had been employed or that he had otherwise exercised rights conferred by the FEU Treaty, Ms G. had not proved that she had acquired a right of permanent residence for the purposes of Directive 2004/38. The Secretary of State brought an appeal to the Upper Tribunal, which referred to the CJEU with questions concerning the method of calculating the period of 10 years of residence, as well as questioning if serving a prison sentence interrupted the residence period.

The Court found that the protection from expulsion in Directive 2004/38 is based on the degree of integration with the host member state. The ten year period of residence under Article 28(3) must be continuous and must be counted back from the date of the expulsion decision. The CJEU underlined that in principle, periods of imprisonment cannot be taken into account in establishing ten years’ continuous residence. The Court stressed that where continuity of 10 years’ residence is broken by imprisonment, the host state must consider, on a case by case basis, whether the integrating links forged with the host member state have been broken such that the ‘imperative grounds’ protection is not available. The Court highlighted that the fact that someone has resided in the host state for 10 years or more prior to imprisonment, should be a fact which may be taken into consideration. However, the CJEU gives no guidance on what constitutes an integrating link or when it’s broken.

This ruling follows the reasoning presented by the Court in the case Nnamdi Onuekwere v. Secretary of State for the Home Department (ruling of 16 January 2014, C-378/12). Mr Onuekwere, a Nigerian national who married an Irish national exercising treaty rights in the UK, was convicted twice after the marriage and spent over a year in prison. The Luxemburg Court was asked to rule on whether he could ‘count’ the period he had spent in prison as legal residence for the purposes of acquiring a permanent right of residence under Article 16 of Directive 2004/38.

The CJEU ruled that periods in prison cannot be counted towards permanent residence. The court emphasised the importance of “social cohesion” and the need for genuine integration as a way to “strengthen the feeling of Union citizenship”. A prison sentence, which demonstrates that the person concerned does not comply with the values of the host member state as expressed in its criminal law, shows that the link of integration with the host state has been undermined. Therefore, it would be contrary to the aims of the Directive to allow periods in prison to count towards a right of permanent residence.

Dominika Bychawska-Siniarska, lawyer at the Helsinki Foundation for Human Rights

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