The right to move and reside Freely within the Territory of a MS

Introduction

A21(1) TFEU: 'Every citizen of the Union shall have the right to move and reside freely within the territory of the MS, subject to the limitations and conditions laid down in the Treaties and by measures adopted to give them effect'

Directive 2004/38EC fleshes out A21 TFEU and sets out administrative formalities to be met for its exercise

  • A4/5: Directive establishes that all EU citizens have a right to exit and enter MS upon production of valid identity card or passport
  • MS may requirement that EU citizens report their presence within the territory and may impose penalties for failure to comply with registration or reporting requirements, but such penalties much be proportionate and non-discriminatory

Grounds for Excluding citizens from the Host MS
A27 Directive 2004/38 provides that MS may expel or refuse entry to EU citizens and family members on grounds of

  • public policy
  • public security
  • public health
  1. The Deportation of Union citizens and family members on grounds of Public policy/ security
  1. Deportation of Union Citizens and Family Members on Grounds of Public Health

There are a number of general principles set out in A27 in relation ot such expulsion or refusal of entry on grounds of public policy or security
1) MS must comply with principle of proportionality
2) Measure must be based exclusively on the personal conduct of the individual concerned
3) Previous criminal convictions do not themselves constitute grounds for taking such measures
4) The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society
5) Justifications tht are isolated from the particulars of the case or that relay on considerations of general prevent shall not be accepted

Compliance with formalities attached to entry and residency


Royer Court of Justice held that the mere failure by a national of a MS to complete the legal formalities concerning access, movement and residence of aliens does not justify a decision ordering expulsion


Watson and Balmann
UK national working in Italy as a child-minder failed to report her presence to the Italian authorities in contravention of Italian law

  • This failure = maximum criminal sanction of a fine, three months imprisonment and deportation from Italy
    HELD: accepted that an obligation to register with administrative authorities could be imposed
  • However, the sanctions for failure to comply with this obligation must be proportionate
  • Deportation as a consequence of failure to comply with such formalities, would, in all cases be disproportionate
  • any penalty imposed must be comparable to sanctions imposed on MS's own nationals for contravention of administrative formalities

Approach of Court of Justice

Criminal Convictions against Calfa
Court of Justice held that an individual's expulsions an automatic result of a criminal conviction was not justified on grounds of public policy since any expulsion must be based on an assessment of whether the personal conduct of the individual constitutes a sufficient, serious and present threat to one of the fundamental interests affecting society

Later cases have emphasized the need for some form of comparability in the treatment of nationals and non-nationals when it comes to alleged threats to public policy and security

R v Bouchereau
French citizen residing in the UK faced expulsion of basis of judicial recommendation that he be deproted following two separate drug convictions

  • Assessment of whether a Union citizen's expulsion is justified on grounds of public policy may require broader consideration than occurs in criminal proceedings
  • Prior criminal conviction not suffiient per se to justify expulsion

Adoui and Cornuaille v Belgium
Concerned two French citizens who appeared to have worked as prostitutes in Belgium

  • Belgium State proposed deporting the pair on basis that their expulsion justified on grounds of public policy
  • Court of Justice acknowledged that MS had a margin of discretion to determine what measures were necessary to protect public policy
  • Nevertheless, there were limits to that discretionary power
  • HELD: MS could not rely upon the concept to justify the expulsion of a Union citizen for anti social conduct where no genuine and effective repressive measures taken against the host MS's own nationals for engaging in same conduct

Rutili
An Italian national living in France granted a residence permit with a prohibition of him living in certain departments

  • Due to his political and trade union activities
  • One of these departments was where Rutili was habitually resident and where his family continued to reside
    ISSUE: two questions referred to court re meaning of the reservation regarding public policy contained in A45
    HELD:
    - Measures restricting the right of residence which are limited to part of the national territory may not be imposed by a MS on nationals of other MS, except in circumstances where such measures may be applied to nationals of state concerned

Difference stance Olazabal
FACTS: Spanish national working in France, sentenced to 18 months imprisonment for conspiracy to disturb public order

  • 4 year ban on residence in the vicinity of the Spanish border
    ISSUE: Argued residence ban discriminatory since French nationals could not be subject to same limitations
    HELD: Neither A45 nor secondary legislation prevents MS from imposing measures which limit his right to residence to part of the national territory provided
  • Justified by reasons of public order/security
  • due to seriousness otherwise give rise to measure prohibiting residence in whole territory
  • conduct which MS wishes to prevent gives rise, in case of own nationals to punitive measures or other genuine and effective measures designed to combat it

Article 22 Directive 200438 Clarifies: MS may impose territorial restrictions on right of residence and the right of permanent residence only where the same restrictions apply to their own nationals

Jipa
Court of Justice examined A27- does not preclude national legislation restricting national of another MS right to travel to another MS, on ground he previously been repatriated from the MS on account of his 'illegal residence' there

  • provided that the persoanl conduct of that national consitutes genuine, present and sufficiently serious threat

A28: Obligation to have regard to humanitarian considerations

  • How long individual has resided in its territory
  • age, health, family, economic situation etc
  • extent of his/her links

Expulsion decision may not be taken against Union citizens, unless decision is bsed on imperative grounds of public security, if they
a) have resided in host MS for previous 10 years
b) are a minor, except if the expulsion is necessary for the best interests of the child,

PI: Applicant convicted of long standing sexual assault of minor
ISSUE: Whether the commission of offence by an individual could be an imperative threat to a fundamental interest in society (10 year resident)
HELD: MS have wide latitude to determine what is a threat to public security

  • ECJ relied on this latitude to conclude the rape of a minor was a threat to public security
  • could be deported

Article 29

  • Diseases with epidemic potential
  • Diseases occurring after 3 month period from date of arrival - not grounds for expulsion
  • Medical examination free of charge

Procedural Guarantees under Directive 2004

Article 30- Notification in writing of meaking of a measure

A31- Right to judicially review decision of host MS to deport them or refuse entry

Time allowed to leave territory must be not less than one month