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„Current EU law and the status of residence of EU- citizens and thirdcountry nationals”*
Alexandra Steinebach and Dr. Levent Güneş *, 2010
1. Introduction
The right of residence in the European Union and the protection against expulsion has
experienced an enormous development in the last few years. Since that time two directives
regulating the right of residents of EU citizens and Third-country-nationals have been
established and implemented into national law of the EU Member States. This article focuses
on the EU legislation on the protection against expulsion of EU citizens and third country
nationals. Taking the entirely different status of residence and protection against expulsion as
a basis this article gives a distinctive description of the legal provision for EU citizens and
third country nationals. The article starts with an overview of the fundamental provisions of
protection against expulsion of EU citizens and continues with discussing the legal status of
third country national with regard to protection against expulsion. In this context the article
illustrates the jurisdiction of the ECHR1 and the ECJ2 and highlights its impact to the legal
practice of EU Member States.
* This article is based on a lecture held by the authors at the “Herbsttagung des Netzwerkes Migrationsrecht from
13. November to 15. November 2009, http://netzwerk-migrationsrecht.akademie-rs.de/2009/09/03/herbsttagung
2009-der-status-von unionsburgern-und-drittstaatsangehorigen-in-der-eu-eine-annaherung/.
* Alexandra Steinebach, Alexandra Steinebach, Ph.D. candidate and research assistant for Prof. Dr. Dr. Rainer
Hofmann (Chair of International Law, European Law and Public Law), University of Frankfurt, Barrister of Public
Law accredited at the Legal Chamber of Frankfurt am Main.
Dr. Levent Güne , project consultant at the Europa Zentrum Baden- Württemberg, Institute and Academy for
European Affairs, Dissertation „Europäischer Ausweisungsschutz“, Nomos Verlag.
1 European Court of Human Rights.
2 European Court of Justice.
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2. Protection against expulsion of EU- citizens
2.1.
Directive 2004/38/ EC
One of the most important legal instruments for residence and expulsion of EU citizens is
directive 2004/38/EG3 which comprises the right of citizens of the Union and their family
members to move and reside freely.
2.1.1. EU- citizenship
Literally the legal provisions only apply to EU citizens and their family members. Under
article 2 No.1 Directive 2004/38/EC the term EU citizen is defined as a person who holds the
citizenship of one EU Member State. Furthermore article 2 No. 2 defines the term of family
members.4 Therefore the enumeration is exhaustive.
2.1.2. Protection against expulsion
Protection against expulsion depends on the length of residence in a host EU Member State. It
is therefore to distinguish between the ordinary right of residence (Chapter III) and the right
of permanent residence (Chapter IV). In case of having a permanent right of residence (Art.
16) the expulsion decision has to fulfill specific requirements to be lawful. Permanent
residence status is given after a continuous residence for more than five years.
2.1.2.1. Article 27
Under article 27 of the Directive the right of residence can only be restricted in case of public
policy, public security5 and public health and shall not be invoked to serve economic ends.
Hence only the breach of public policy is insufficient but the personal conduct of the EU
citizen must represent a genuine, present and sufficiently serious threat affecting one of the
fundamental interests of society.
3
4
5
Legal gazette of the European Union, L 158, date 30.4.2004.
See also: Directive 2004/38/EC, L 158, date 30.4.2004.
See definition of the terms public policy and security in article 27(3) of Directive 2004/38 EC.
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2.1.2.2. Article 28
Article 28 represents the principle of proportionality to which the expulsion decision shall
comply. Under article 28 (1) the host EU Member State shall take into account e.g. the social
and cultural integration of the individual and the extent of his/her ties to the state of origin.
Article 28 (2) states that any individual who has the right of permanent residence on the host
EU- member state´s territory can be expelled only on serious grounds of public policy or
public security. Moreover article 28 (3) exacerbates the expulsion for individuals who have
been legally resident for an uninterrupted period of the previous ten years. In this particular
case the expulsion decision can only be lawful due to imperative grounds of public security as
defined by Member States.
2.2.
Jurisdiction of the ECJ
By its jurisdiction in Orfanopoulos and Oliveri6 the EuGH specifies the requirements of a
lawful expulsion which are listed in article 27 and article 28 of Directive 2004/38/EC. In both
cases the court determined that the expulsion decision must not only be based on a criminal
conviction.7 The court found that previous criminal convictions cannot in themselves justify
those measures. As the Court has held, the concept of public policy presupposes the existence
in addition to the perturbation of the social order involving any infringement of the law of a
genuine and sufficiently serious threat to the requirements of public policy affecting one of
the fundamental interests of society.8 Hence, the court clarified that expulsion decisions
against EU citizens can only be ordered after a discretionary adjudication. Moreover the court
states that automatic expulsions due to the criminal conviction cannot be justified under
European law. The national courts have to take into consideration factual matters which
occurred after the final decision of the competent authorities which may point to cessation or
substantial diminution of the present threat which the conduct of the person concerned
constitutes to the requirements of public policy.9 This follows from the principle of
ECJ, Orfanopoulos and Oliveri, [C-482/01] and [C-493/01], 29.4.2004.
The decision was based on Directive 64/221/EC on the co-ordination of special measures concerning the
movement and residence of foreign nationals which are justified on grounds of public policy, public security or
public health.
8
ECJ, Orfanopoulos and Oliveri, [C-482/01] and [C-493/01], 29.4.2004, para. 66, 67.
9
ECJ, Orfanopoulos and Oliveri, [C-482/01] and [C-493/01], 29.4.2004, para. 82.
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effectiveness stating that domestic law must not make the enforcement of Community law
impossible in practice. 10
2.3.
Implementation and its deficits in the EU Member States
Particularly the terms “public security”, “public policy” or “public health” in article 27 of the
Directive have been interpreted on a considerably varying basis in respective jurisprudence of
EU Member States have been ascertained.11 In almost all EU Member States a lack of
definitions can be detected allowing public administration and police to exercise a wide
margin of appreciation.12 For instance, in Italian and Finnish legislation various regulations
are still in existence permitting automatic expulsions in case of serious offences or in cases of
serious criminal records with reference to issues of public security and public policy.13
Additionally these requirements are not accepted by some EU Member States with respect to
the expulsions of EU citizens residing in a host EU Member State for an uninterrupted period
of more than three years and do as well not apply to those who are incapable to provide a
permanent work or a regular residence. Concerning this matter Italy and France often enact an
expulsion against members of a specific ethnic group.14
3. Protection against expulsion of third- country nationals
Protection against expulsion of third- country nationals15 is more complex and is carried out
on a lower level of protection. Thus one has to distinguish between third- country nationals
which are family members of an EU citizen, Turkish nationals which are covered by the EECTurkey Association Agreement- Decision 1/80 of the Association Council16 and other thirdcountry nationals.
3.1.
Family members of EU citizens
In comparison to other third- country nationals family members of EU citizens have the
strongest protection from expulsion given that they are also covered by the 2004/38/ EC.
10
ECJ, Orfanopoulos [C-482/01] and Oliveri [C-493/01], 29.4.2004, para. 80.
European Parliament, Report on the application of Directive 2004/38/EG, Committee on Civil Liberties, Justice
and Home Affairs, A6-0186/2009, page 8.
12
See Czech Republik and Slovakia, Act.No.48/2002 Coll., Sec. 6, paragraph 1.
13
See European Commission Report COM 840/2008, page 7, margin ref. 3.8.; article 235 of the criminal code of
Italy.
14
See expulsion of Roma in Italy and France: Resolution of the European Parliament on the implementation of
Directive 2004/38/EC, 15.11.2007.
15
Non- EU citizens.
16
EEC-Turkey Association Agreement had been signed in 1963, but has not been implemented to date. Due to
decision 1/80 of the Association Council in 1980 the freedom of movement within the European Union for Turkish
nationals has been facilitated step by step.
11
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Under article 2 No. 2 of the directive family members are defined as spouse, the partner with
whom the Union citizen has contracted a registered partnership on the basis of the legislation
of a Member State; this requires the legislation of the host Member State to treat registered
partnerships as equivalent to marriage and in accordance with the conditions laid down in
relevant legislations of the host Member State. The regulations of article 27 and 28 of the
directive also apply to this group. Hence for more details refer to II 1 b of this article.17
3.2. Turkey nationals who are covered by the EEC-Turkey Association Agreement- Decision
1/80 of the Association Council
Turkish nationals being covered by the EEC-Turkey Association Agreement- decision 1/8018
possess a special protection against expulsion. Even though the Association Agreement
merely establishes the conditions and requirements for work permissions and residence
permissions the Member States have to omit all measures which limit the exertion of the
rights set forth in the Association Agreement.19 Due to the lack of written residence
legislation the ECJ has constantly specified the so-called “implicit right of residence” in its
jurisdiction.20 However, it is to be recorded that these rights do not apply to Turkish nationals
who are not covered by the decision 1/80. In this case the expulsion has to be in accordance
with general provisions.
3.2.1. Jurisdiction of the ECJ
In the case Nazli21 the ECJ strengthened the rights of Turkish employees who are covered by
the Association Agreement. In its decision the court adopted for the first time these principles
regarding the protection against expulsion of EU citizens for Turkish nationals being covered
by the Association Agreement. The court stated that any expulsion on general preventive
grounds is forbidden; especially where that measure has automatically followed a criminal
conviction without any account being taken of the personal conduct of the offender or of the
danger which that conduct represents for the requirements of public policy.22 Moreover the
court clarified that the principles of the treaties 23 concerning the freedom of movement of EU
citizens has to be applied extensively to Turkish nationals who are covered by the agreement
1/80. The application is justified with the purpose of the agreement to enable the freedom of
17
See article 27 and 28 of Directive 2004/38/EC.
Decision 1/80 on the conclusion of the Agreement establishing an Association between the European Economic
Community and Turkey, 19. September 1980.
19
Hailbronner, Asyl- und Ausländerrecht, Die Rechtstellung türkischer Staatsangehöriger, page 421, 2008.
20
ECJ, Sahin, [C-242/06], 17.09.2009.
21
ECJ, Nazli, [C-340/97], 10.02.2000.
22
ECJ, Nazli [C-340/97], para. 61.
23
Article 39- 41 EG.
18
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movement for Turkish employees.24 In the case Cetinkaya the court took one step forward25
when it alleged the principles of the protection against expulsion of EU citizens settled in the
case Orfanopoulos/Oliveri26 for Turkish nationals being covered by the agreement 1/80.
Accordingly, national courts have to implicate factual matters occurring after decisions of
final nature rendered by competent authorities if pointing to cessation or substantial
diminution of a present threat to public policy generated by the person concerned.27 Therewith
the protection against expulsion of Turkish nationals being covered by agreement 1/80 equals
the protection against expulsion of EU citizens. Concerning the protection against expulsion
it has to be seen if the high barrier established by pursuant to article 28 No.3 can be adopted
for Turkish nationals. The ECJ has not decided this matter so far but currently a numerous
amounts of cases on the applicability of article 28 No. 3 of 2004/38/EC to Turkish nationals
are pending. These cases are questioning whether the requirements pursuant to article 28 No.3
of 2004/38/EC28 applies to Turkish nationals who are covert by agreement 1/80 or not.29
The strengthening of protection against expulsion in Europe by the judgements
“Orfanopoulos & Oliveri” was leading to a decline in the number of expulsion orders and thus
a considerable decrease of cases in which EU citizens were obligated to leave the country.
This could be proved on the basis of the statistics of the entire German federal territory.30 A
nationwide decline in the number of expulsion orders could also be demonstrated within the
group of Turkish citizens benefiting from the association agreement who were obligated to
leave the country. This results particularly from the judgement of the Court of Justice of the
European Union in the “Cetinkaya” case, in which the Court assigned his criterion for
expulsion developed for EU citizens to Turkish citizens benefiting from the association
agreement.
3.3. Other third- country nationals
Since the level of protection is linked to the status of residence in host member states two
different groups can be identified. With regard to the protection against expulsion of other
third- country nationals one has to note that one has to distinguish between two groups due to
24
See ECJ, Bozkurt [C-434/93], 06.06.1995, para. 14,19,20; ECJ, Tetik [C-171/95], 23.11.01.1997, para. 20, 28, .
ECJ, Centinkaya, [C-467/02], 11. 11. 2004.
26
See chapter II 2.
27
ECJ, Centinkaya, [C-467/02], 11. 11. 2004, para. 45.
28
See chapter II 1 b (bb).
29
Federal Administrative Court, 25. August 2009, (1 C 25.08): This reference for a preliminary ruling concerns the
interpretation of article 14 (1) of Decision 1/80 on the conclusion of the Agreement and the applicapility of Art. 28
(3) of Directive 2004/38 in the case of an expulsion of a Turkish national who falls within the scope of article 7
Decision 1/80 on the conclusion of the Agreement.
30 See Günes, Levent, Europäischer Ausweisungsschutz Nomos Verlag 2009, page 202 ff.
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the fact that the level of protection against expulsion depends on the status of residence in the
host Member States.
3.3.1. Third-country nationals who are long-term residents
The 2003/109 EC31 concerning the status of third- country nationals who are long- term
residents applies to those who have legally and continuously resided within the territory of the
Member States for five years. Pursuant to article 3 of the directive some categories are
excluded from its scope, so as refugees, asylum seekers awaiting a decision on their status,
seasonal workers or workers posted for the purpose of providing cross-border services,
persons who have been granted temporary protection or a subsidiary form of protection,
persons residing in order to pursue studies or vocational training. These respective
requirements are established in article 12 of the directive. Thus expelling a third- country
nationals can only be justified if he/she constitutes an actual and sufficiently severe threat to
public security or public policy. Therefore Member States have to take into account the length
of residence, age, his/her ties to the state of origin and so on. Nevertheless it remains highly
debatable whether the protection against expulsion of third- country nationals is equal to the
protection against expulsion of EU citizens or not.32 A decision by the ECJ dealing with this
legal matter has to be awaited.
3.3.2. Other Third- Country national
Third – country nationals who are covered neither by the EEC-Turkey Association Agreement
1/80 nor by the directive 2003/109/EC have the weakest legal status in the context of
protection against expulsion. In Europe only the European Convention on Human rights
provides for protection against expulsion. Consequently the court established a
comprehensive and extensive jurisdiction acknowledging various substantive rights as
expulsion prohibitions. Due to the large amount of relevant jurisdiction this article
concentrates solely on article 8 ECHR. One of the essential rights concerning the protection
against expulsion is article 8 which contains the protection of private and family life. In the
jurisdiction of the ECHR, article 8 experiences a broad interpretation. The term private life
contains the inner circle of personality as well as external connections to other people.33 Thus
the scope of article 8 is characterized by personal, social and economical connections/linkage
31
Legal gazette of the European Union, L16/44, 23.01.2004
See Dienelt, Klaus, Directive 2004/38 EC, Directive 2003/109/EC, Third- Country nationals and freedom of movement,
23.01.2006, http://www.migrationsrecht.net/nachrichten-auslaenderrecht-europa-und-eu/428-daueraufenthaltsrichtlinie-
32
richtlinie-2003/109/eg-drittstaatsangehoerige-freizuegigkeit.html, 6.10.2009.
33
Grabenwarter, Europäische Menschenrechtskonvention, Rechte der Person, § 22, para. 6, 2009.
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defining the private life of people.34 In fact article 8 does not contain the right to enter an EUMember State, but private and familiar connections can carry out a protection from expulsion
This results from the fact that the ECHR basically classifies expulsion as a violation of article
8 which only can be justified by the existence of the premises of article 8 No. 2 of the
Convention.35 Within the examination of article 8 No.1 of the Convention the court take into
consideration the root of the applicant in the host Member State. The court stated previously
that someone is sufficiently entrenched if he or she has intensive private or family ties within
the host Member State.36 However, the court only assumes the possibility of reintegration
within the examination of the proportionality under article 8 No. 2 of the convention.37 To
retrieve the protection given under article 8 of the convention the third- country national have
to fulfill several requirements developed by the court such as, length of residence in the host
Member State, nature of residence (temporary/unlimited), family circumstances, criminal
offence (gravity/number/imposed punishment), age, roots in the host Member State, roots to
the country of origin, limitation of an expulsion, state of health, information about the
expulsion and the facts on which the expulsion is based in time.
bb. Article 3 ECHR
Article 3 ECHR also limits the extradition of a person being subjected to torture or inhuman
or degrading treatment or punishment in the requesting country. Extradition in such
circumstances would, according to the Court, plainly be contrary to the purpose and
intendment of the Article and would hardly be compatible with the underlying values of the
Convention.38 It leads from the spirit of the convention that a State is not only responsible for
securing the rights and freedoms set forth in the European Convention for those present
within its territory. Moreover it is also prohibited to expose an individual to the threat of
rights violation in another State, even in a non- contracting State.39 The prohibition of
refoulement is constituted as an unwritten element of article 3 ECHR. Moreover the court
constantly held that the prohibition of refoulement as an inherent element of article 3 ECHR
is formulated in absolute terms, allowing neither exceptions nor derogations in any
34
Eckertz- Höfer, Zeitschrift für Ausländerrecht und Ausländerpolitik, 2/2008, page 43.
ECtHR, Omoregie and Others vs. Norway, Appl.No. 265/07, 31.07.2008, para. 66.
36
ECtHR,. Sisojeva and Others vs. Latvia, Appl.No. 60654/00, 06.2005, para. 101.
37
ECtHR, Baghli vs. France, Appl.No. 34374/97, 30.11.1999, para. 48.
38
ECtHR, Söring vs. United Kingdom, Appl. No. 14038/88, para. 88.
39
ECtHR, Söring vs. United Kingdom, para. 88; ECHR, Cruz Varas and Others vs. Sweden, Appl. No.
46/1990/237/307, 20.03.1991, para. 69-70.
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circumstances.40 Therewith the court rejected the argument of a various number of MemberStates regarding the derogation of the prohibition of refoulement in the context of national
security.41 To be granted protection from refoulement under article 3 ECHR substantial
grounds must be shown for believing that the individual faces the risk of being subjected to
torture or inhuman or degrading treatment. The individual concerned must provide for a
credible claim containing sufficient facts and circumstances to induce the existicence of a
factual risk.42 The evaluation of the risk carried out by the court is based on an assessment on
the common situation in the country of origin as well as personal circumstances of the
individual concerned.43 In this context the use of diplomatic assurances against torture is a
specifically important area.44 The term “diplomatic assurances”, as used in the context of the
transfer of a person from one State to another refers to an undertaking by the receiving State
to the effect that the person concerned will be treated in accordance with conditions set by the
sending State or, more generally, in keeping with its human rights obligations under
international law.45 The function of these assurances is to reduce an existing risk of a person
being tortured and to render a removal lawful.46 The court has held that such diplomatic
assurances are not in general insufficient to reduce the real risk of being tortured.47 In fact the
court ruled that the legitimacy of diplomatic assurances generally depends on the particular
case. In this regard it has to be awaited if the court is willing to specify its jurisdiction
concerning the use of diplomatic assurances.
4.
Conclusion
In the last few years an ongoing development to strengthen the protection against expulsion in
the European Union can be detected. Based on the consequent jurisdiction of the ECJ the
legal position of third- country nationals and particularly Turkish nationals being comprised
by the decision 1/80 was strengthened continuously resulting in a similarly effective
40
ECtHR, Chahalvs. United Kingdom,Appl.No. 70/1995/576/662, 15.11.1996, para. 74; ECtHR, Saadi vs. Italy,
Appl.No. 37201/06, 28.02.2008, para. 127.
41
ECtHR, Saadi Saadi vs. Italy, Appl. No. 37201/06; ECtHR, Ramzy vs. the Netherlands, Appl. No. 25424/05,
Observations of the Governments of Lithuania, Portugal, Slovakia and The United Kingdom, 21.11.2005.
42
ECtHR, N.A. vs. United Kingdom, Appl.No.: 25904/07, 17.07.2008, para 142 ff.; ECtHR, F.H. vs. Sweden,
Appl. No. 32621/06, para. 97ff..
43
ECtHR, Nnyanzi vs. United Kingdom, Appl. No. 21.878/06.
44
See Amnesty International, Amnesty Report 2009, Denmark und United Kingdom,
http://www.amnesty.de/country reports, 19.10.2009.
45
UNHCR, Note on diplomatic assurances and international refugee protection, Protection Operations and Legal
Advice Section, Division of International Protection Services Genf, August 2006, S.1.
46
ECtHR, Saadi vs. Italyy, Appl.No. 37201/06, para 116.
47
ECtHR, admissability decision 20.02.2007, Mohammed Ali Hassan Al-Moayad vs. Germany, Appl.No.
35.865/03, para 103.; ECtHR, admissability decision 16.10.2006, Burga Ortiz vs. Germany, Appl.No. 1101/04, S.8.
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protection against expulsion as of EU- citizens. Nevertheless one cannot overlook that the EU
Member States do not abstain completely from expelling EU citizens and aliens. Obtaining
and holding a permanent residence status as well as a strong protection against expulsion is
necessary for a successful integration. New cases pending before the ECJ show that
increasing stabilization of the rights of Turkish nationals and third country nationals who are
long term residents can be expected.