Law Student University of Hamburg, Germany
Erasmus student at Faculty of Law in Maribor, Slovenia
Who becomes an offender in the European Union (EU) without being citizen of one of its Member States can get deported outside the EU. But what happens if the person has a child with an EU citizenship? The European Court of Justice (ECJ) has now (13.09.2016) answered the requests for a preliminary ruling, according to Art. 267 TFEU, about the reading of Art. 20 TFEU for Spain and the United Kingdom.
In both cases, a non-European citizen was convict to a prison sentence. After the time in prison, the affected persons should not receive a legal status to stay in the EU anymore. Therefore also the children of the affected persons must leave the territory of the EU, due to the dependency to the person.
The ECJ now decided, that if the affected person is alone entitled to custody for a child that is citizen of the EU and must leave the country otherwise, a deportation is excluded.
The ECJ named a handful of reasons, why the deportation shall be excluded. One of the question of the referring courts was, if the national measure is opposed to Art. 20 TFEU. Thereto the ECJ decided, that the deportation of a third-country national is opposed to Art 20 TFEU, if the measure leads to a situation where a child with a citizenship of the EU has to leave the territory of the EU de facto, because the child is dependent to the affected person. Even if the child has never used his right to move freely within the territory of the EU, it is still a citizen of one Member State and enjoys the rights of the Treaties. If a deportation leads to the situation, where the child has to leave the country with the person, which should get deported, the child can not enjoy its freedom of movement within the EU anymore. Even if the regulations about the entry and departure of third-country nationals fall under the jurisdiction of the Member States, therefore beyond the secondary law, the measure still leads to a refusal to use of the right of an European citizen. That was decided by the ECJ in another case (Iida v Stadt Ulm). Therefore a right of residence can get derived for the affected parent, from the right of the child according to Art. 20 TFEU.
The Court also decided that a restrictions of this derived right is allowed under special preconditions. The exceptions are also codified in the Directive 2004/38. A Member State shall be allowed to restrict the right of residence of citizen of the EU and their family members, if reasons of public order, security or health require such a measure. In this particular cases at hand, the Spanish and British authorities refused to give the affected persons a right of residence because their previous convictions. These convictions were called to affect the public order, due to their threat for legitimate interests as the protection of the social cohesion.
The ECJ requires a narrow interpretation of the terms „public order“ and „public security“ as a justification for a derogation of the residence right of citizen of the EU and their family members. According to the ECJ a threat for the public order requires more than only a disorder of the social order. Every infringement constitutes a disorder of the social order. Rather an actual, current and significant threat for a core interest of the society is required. This cannot be automatically inferred by the existence of previous convictions. Rather a whole subsumption of all actual and relevant circumstances in a given case must be considered by national courts, as length and legitimacy of the residence, kind and gravity of the crime, the age of the dependent child and the family and economical situation of the child. The national courts shall also consider the principle of proportionality in their adjudgment and the consideration of all circumstances.
The ECJ also decided about a derived right of residence from the Directive 2004/38. Art. 3 (1) of the Directive calls as beneficiaries every Union citizen, which exercised its right to move freely within the territory of the EU. If the citizen has not exercised its right, also family members of the citizen do not fall under this regulation, because the rights gained through the Directives are not the own rights of the third-country nationals, but derived from the right of the citizen of the European Union (McCarthy v United Kingdom). Therefore the national measure of deporting a single parent is not opposed to the Directive 2004/38 only in cases, when the child never exercised its right to move freely within the EU.
Consequences and bottom line
Summarizing, the ECJ ruled with the decisions how to deal with a situation, a non-European citizen shall get deported, but is alone entitled to custody for a child with a citizenship of the EU or rather a citizenship of one Member State. The Court do not block such regulations completely, but ties them on strict requirements. Reasons of public security and order can restrict the free movement of persons, whereby the principle of proportionality shall always be respected. A simple criminal conviction does not suffice with a additional hazard analysis.
Therefore the protection of the welfare and safety of the child with a European citizenship has been strengthened.