(References for a preliminary ruling — Citizenship of the European Union — Right to move and reside freely within the territory of the Member States — Directive 2004/38/EC — Article 28(3)(a) — Enhanced protection against expulsion — Conditions — Right of permanent residence — Residence in the host Member State for the 10 years preceding the decision to expel the person concerned from that Member State — Period of imprisonment — Consequences as regards the continuity of the 10-year period of residence — Connection with the overall assessment of an integrative link — Time at which that assessment must be carried out and criteria to be taken into account in that assessment)
SOURCE: Court of Justice of the European Union, Annual report 2018
In the joined cases giving rise to the judgment in B and Vomero, delivered on 17 April 2018, the Grand Chamber of the Court ruled on the question of eligibility for protection against expulsion from a Member State, provided for in Article 28(3)(a) of Directive 2004/38.
The first case involved a Greek national born in 1989 who, in 1993, following the separation of his parents, moved with his mother, who held both Greek and German nationality, to Germany where he had a right of permanent residence within the meaning of Article 16 of Directive 2004/38. He was given a prison sentence of 5 years and 8 months in 2013 and was placed in detention on 12 April 2013. In 2014, the German competent authority determined that he had lost his right of entry to and residence in Germany and ordered him to leave that Member State within 1 month. The second case concerned an Italian national who had moved to the United Kingdom in 1985. Between 1987 and 1999, he received several convictions in Italy and in the UK, none of which resulted in his imprisonment. He was convicted of manslaughter and sentenced to 8 years’ imprisonment in 2002. He was released in July 2006. The UK competent authority ordered his deportation in 2007.
In its judgment, the Court first of all held that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that it is a prerequisite of eligibility for the protection against expulsion provided for in that provision that the person concerned must have a right of permanent residence within the meaning of Article 16 and Article 28(2) of that directive. The Court noted that under Directive 2004/38, the protection against expulsion gradually increases in proportion to the degree of integration of the Union citizen concerned in the host Member State. Thus, whereas a citizen with a permanent right of residence may be expelled on ‘serious grounds of public policy or public security’, a citizen who can show that he has been resident for the preceding 10 years may be expelled only on ‘imperative grounds of public security’. Accordingly, that enhanced protection linked to a 10-year period of residence in the host Member State is available to a Union citizen only if he first satisfies the eligibility condition for the lower level of protection, namely having a right of permanent residence after residing legally in the host Member State for a continuous period of 5 years.
Furthermore, the Court made clear that the 10-year period of residence necessary for the grant of the enhanced protection provided for in Article 28(3)(a) of Directive 2004/38 must be calculated by counting back from the date of the decision ordering that person’s expulsion and must, in principle, be continuous. It follows from the Court’s case-law that periods of imprisonment may, by themselves and irrespective of periods of absence from the host Member State, lead, where appropriate, to a severing of the link with that State and to the discontinuity of the period of residence. However, the fact that the person concerned was placed in custody by the authorities of that State cannot be regarded as automatically breaking the integrative links that that person had previously forged with that State and the continuity of his residence there.
Consequently, in the case of a Union citizen who is serving a custodial sentence and against whom an expulsion decision is adopted, the condition of having ‘resided in the host Member State for the previous 10 years’ laid down in that provision may be satisfied where an overall assessment of the person’s situation, taking into account all the relevant aspects, leads to the conclusion that, notwithstanding that detention, the integrative links between the person concerned and the host Member State have not been broken. Those aspects include, inter alia, the strength of the integrative links forged with the host Member State before the detention of the person concerned, the nature of the offence that resulted in the period of detention imposed, the circumstances in which that offence was committed and the conduct of the person concerned throughout the period of detention.