9 Limitation of the free movement of persons PDF

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Slide 1 LIMITATIONS TO THE FREE MOVEMENT OF PERSONS ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY AND PUBLIC HEALTHSlides 2 The free movement of persons within the EU is not absolute. The free movement of EU citizens (and their family members) is subject to limitations on grounds of public policy, pu...

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M9212 EU Law

2020-21

Slide 1 LIMITATIONS TO THE FREE MOVEMENT OF PERSONS ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY AND PUBLIC HEALTH Slides 2 The free movement of persons within the EU is not absolute. The free movement of EU citizens (and their family members) is subject to limitations on grounds of public policy, public security and public health. These limitations are enshrined in Treaty provisions: -

Article 45(3) TFEU (workers);

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Article 52 TFEU (people exercising the freedom of establishment and the freedom to provide services).

Limitations to free movement on grounds of public policy, public security and public health were consolidated in EU secondary legislation. These limitations were initially consolidated in Directive 64/221. However, this Directive was repealed and replaced by Chapter IV of Directive 2004/38/EC (Citizenship Directive). Note that Chapter IV of the Citizenship Directive applies to all EU citizens and their family members.

Slide 3 1. PUBLIC POLICY The concept of public policy is not defined in the TFEU and the term public policy has therefore been defined by the Court of Justice (CJ). In the van Duyn Case, the CJ stressed that the concept of public policy must be interpreted strictly (Case 41/74). Initially, however, the CJ took the view that the concept of public policy could vary from Member State to Member State and held that Member States should enjoy a certain degree of discretion within the limits imposed by the Treaty. Facts in van Duyn: In this case, the UK authorities had refused entry to a Dutch national who wished to come to the UK to work for the Church of Scientology. The Church of Scientology was considered ‘socially harmful’ by the UK authorities and the latter-imposed restrictions on Van Duyn’s free movement rights on the basis of public policy for this reason.

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The CJ held that the fact that the UK considered the activities of the Church of Scientology to be ‘socially harmful’ was sufficient to allow the UK to rely on public policy to restrict van Duyn’s free movement rights. Yet UK citizens were allowed to work for the Church of Scientology in the UK. However, in subsequent cases, the CJ developed a far more restrictive approach to limitations to free movement.

In Rutili, the CJ adopted a much stricter approach to public policy and seriously narrowed down the degree of discretion it had initially granted to Member States ( Rutili v. Ministère de l’Intérieur, case 36/75). Rutili was a political agitator who resided in France. The French authorities had restricted his movements within the French territory to certain regions on public policy grounds. The CJ held that Member State nationals’ right to enter and reside in another Member State could not be restricted on grounds of public policy, unless their presence in the Member State concerned constituted a genuine and sufficiently serious threat to public policy. The concept of public policy was further narrowed down in R v Bouchereau (case 30/77) => The CJ specified that the genuine and sufficiently serious threat to public policy posed by the individual’s presence must affect one of the fundamental interests of Society. In sum, to restrict an EU citizens’ free movement rights (or their family members’) on the basis of public policy, the EU Member State concerned must demonstrate that the person’s presence on its territory constitutes a genuine and sufficiently serious threat to public policy affecting one of the fundamental interests of Society. The Rutili/Bouchereau test was subsequently enshrined in Article 27(2) of the Citizenship Directive. In Adoui and Cornuaille v Belgium (Cases 115 & 116/81), the CJ made clear that the fact that an activity was considered socially harmful would not justify limitations on the basis of public policy. This is in stark contrast with the Court’s ruling in Van Duyn. Had van Duyn been decided after the Rutili and Bouchereau judgments, the UK would not have been able to

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restrict van Duyn’s free movement rights on the basis of public policy as UK citizens could work for the Church of Scientology in the UK. In Adoui and Cornuaille, two French sex workers appealed against the Belgian authorities’ refusal to grant them a resident permit on account of their activities. However, the CJ held that the Belgian authorities could not make use of the public policy limitation in this instance because Belgian nationals who engage in sex work in Belgium were not subject to repressive measures or other effective measures against sex work. Slide 4 

Personal conduct

Limitations to free movement on grounds of public policy must be based on the personal conduct of the individual concerned. This was initially held by the CJ (see cases below) and then enshrined in Article 27(2) of the Citizenship Directive. The CJ further specified that previous criminal convictions should not in themselves constitute grounds for the taking of such measures. This was subsequently enshrined in Article 27(2) of the Citizenship Directive. In Bouchereau, a French national working in the UK had been convicted of unlawful possession of drugs. Six months earlier he had been convicted of a similar offence. The magistrate now wished to deport him on grounds of public policy. The CJ held that the existence of a criminal conviction could only be taken into consideration in so far as the circumstances that led to that past conviction were evidence of ‘personal conduct constituting a present threat to the requirements of public policy ’. In other words, Member State authorities can take into consideration a person’s criminal record when assessing whether the Rutili/Bouchereau test is met. What Member State authorities cannot do, however, is to automatically restrict a person’s free movement rights on the basis of public policy because s/he has previous criminal convictions. (See also R. V Secretary of State for the Home Department, ex parte Santillo (Case 131/79)).

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In Bonsignore (case 67/74), an Italian worker living in Germany had shot his brother by accident. The brother was not seriously injured. The Italian worker concerned had breached German firearms laws. He was not prosecuted for the shooting of his brother because it was accidental, but was fined for illegal possession of a firearm and the German court ordered his deportation. It was argued that his deportation was a necessary preventive measure designed to deter other immigrants from committing similar offences. The CJ rejected the German authorities’ argument because limitations to free movement rights on public policy must be based on the personal conduct of the individual concerned. Bonsignore’s deportation could not be based on reasons of a general preventive nature. In Donatella Calfa (Case C-348/96), the CJ held that a Greek law that automatically provided for the expulsion for life of foreign nationals – including EU Member State nationals – who had been convicted of certain offences breached EU law in respect of Member State nationals and their family members. This is because restrictions to free movement on grounds of public policy must be based on personal conduct. Slide 5 2. PUBLIC SECURITY The boundary between public policy and public security was discussed in Tsakouridis (C145/09). The case concerned a drug dealer who was part of an organised group dealing in narcotics. 

The Court noted that matters relating to foreign relations or military interests may be considered as matters of public security.

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The Court, however, added that public security was not limited to these interests, but could include internal matters such as serious crime.

 It is for the national court to assess the matter in each case => if the level of severity required to constitute public security is not shown, the issue can still be considered as a matter of public policy.

The distinction between public policy and public security becomes important in light of the procedural guarantees introduced by the Citizenship Directive, and especially protection against expulsion (see below section on protection against expulsion)

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Limitations to free movement on grounds of public security must be based on the personal conduct of the person concerned (Article 27(2) of the Citizenship Directive). Slide 6 3. PUBLIC HEALTH The Citizenship Directive specifies that the only diseases that can justify measures restricting free movement rights on grounds of public health are those ‘with epidemic potential as defined by the relevant instruments of the World Health Organisation’ as well as other infectious diseases or parasitic diseases provided they are the subject of protection provisions applying to nationals of the host Member State (Article 29(1) Citizenship Directive). Such diseases include, for example, tuberculosis. In a 1999 Communication, the Commission made it clear that the free movement of persons who were HIV positive or suffered from AIDS should be safeguarded (COM(1999) 372). Some Member States had tried to deny them admission (e.g. Austria), although HIV and AIDS were not mentioned in the Citizenship Directive (or its predecessor Directive 64/221). In its Communication, the Commission rejected the use of any measures that could lead to ‘social exclusion, discrimination or stigmatisation of persons with HIV/AIDS’. COVID-19 is not amongst the listed diseases, but the EU Commission has issued guidelines on free movement during the pandemic (e.g. Communication from the Commission, Guidelines concerning the exercise of the free movement of workers during COVID-19 outbreak (2020/C 102 I/03)). The use of the public health derogation is limited in time. Unlike public policy and public security that may be invoked at any time from the time the EU citizen (or a family member) enters the territory of a Member State other than the Member State of nationality, public health can only be invoked to limit free movement rights at the time of the initial entry or during the first three months of the EU citizen’s (or family member’s) stay. After three months, free movement rights can no longer be limited on the basis of public health.

Slide 7 4. MEASURES THAT CAN BE ADOPTED AGAINST NATIONALS OF OTHER EU MEMBER STATES 5

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The Citizenship Directive (Directive 2004/38) provides for a range of restrictions to EU Citizens (and their family members’) free movement rights. 4.1.

Partial restrictions

In Rutili, the CJ ruled that derogations to the free movement of workers on the basis of public policy (or security) could only justify a total ban on residence in a Member State. In this case, the French authorities had restricted the freedom of movement of Rutili to a certain area of the French territory. Such a partial restriction was not permitted by the CJ (Case 63/75 Rutili). The ruling in Rutili was criticised as it only allowed the imposition of greater restrictions, i.e. refusal of entry or expulsion if the individual was already present on the Member State’s territory (as was the case in this instance). This criticism was acknowledged by the CJ in Van Duyn and the issue was revisited in Olazabal (C-100/01). In Olazabal, the CJ ruled that a Member State could impose partial restrictions on the right of residence within its territory provided that: 

Such action if justified by reasons of public order or public security must be based on the individual’s conduct;

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The only alternative course of action, given the seriousness of that conduct, would consist of a measure prohibiting the individual from residing in the whole of the national territory; and

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The conduct which the Member State concerned wishes to prevent gives rise, in the case of its own nationals, to genuine and effective measures designed to combat it.

Slide 7 4.2. 

Expulsion

Expulsion in addition to a criminal penalty

The ruling of the CJ in Bonsignore indicates that expulsion cannot be required in addition to a criminal penalty as a matter of course (Case 67/74 Bonsignore). This is considered to go against the requirement of personal conduct and the principle of proportionality (Case C348/96 Donatella Calfa). The principle of proportionality is also enshrined in Article 27(2) of the Citizenship Directive. 

Permanent exclusion

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If a Member State has grounds to restrict an EU citizen’s free movement rights, this does not mean that it can do so on a permanent basis. In Calfa, the CJ ruled that such an approach could be disproportionate (Case C-348/96 Donatella Calfa). Article 27(2) of the Citizenship Directive: principle of proportionality. Article 32 of the Citizenship Directive: gives persons who have been expelled on the basis of public policy or public security the right to apply for the lifting of an exclusion order where there has been a material change in the circumstances of the person concerned.

Slide 9 5. PROTECTION AGAINST EXPULSION Article 28 of the Citizenship Directive imposes limitations on Member States’ ability to expel EU citizens and their family members. Article 28 of the Citizenship Directive reads: 1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. 2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) have resided in the host Member State for the previous ten years; or (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.

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The Citizenship Directive and the case law of the CJ aim to bring the latter in line with the case law of the European Court of Human Rights on the right to respect for private and family life enshrined in Article 8 of the European Convention on Human Rights (Case C482/01 Orfanopoulos). The Orfanopoulos case refers to the ECtHR’s judgment in Boultif v Switzerland on Article 8 ECHR). Limiting factors such as length of the person’s residence in the host Member State, the age of the person, the state of his/her health, his/her family and economic situation must be taken into consideration in light of the requirements of the European Convention on Human Right, and in particular Article 8 on the right to protection of family and private life. Note that the case law of the European Court of Human Rights has only persuasive authority on the Court of Justice as the EU is not (for the time being) a party to the European Convention on Human Rights. The Commission has provided guidance on protection against expulsion (‘Commission gives guidance on free movement and residence rights’ EU Focus 2009, 258, 2-3): 

EU citizens and their family members who are permanent residents (normally after five years) in the host Member State can be expelled only on serious grounds of public policy or public security.

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EU citizens residing for more than ten years and their children can be expelled only on imperative grounds of public security (not public policy). There must be a clear distinction between normal, “serious” and “imperative” grounds on which an expulsion can be taken.

Long-term residents have increased protection from expulsion, largely because they will have developed strong links with the host Member State. This in in line with the case law of the European Court of Human Rights.

Slide 10 6. PROCEDURAL RIGHTS The Citizenship Directive provides for extensive procedural rights. 6.1.

Reasons for decisions

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Article 30 of the Citizenship Directive: the person concerned shall be informed in writing of any decision to restrict his or her free movement rights The Directive incorporates the jurisprudence of the CJ in cases such as Rutili. In this case, the CJ ruled held that the authority making the decision should give the person concerned a precise and comprehensive statement of the grounds for the decision to enable him or her to take effective steps to prepare his or her defence. ZZ v SSHD Case C-301/11 => The CJ held that the essence of the reasons for a decision refusing entry into a Member State must be disclosed to the person concerned.

6.2.

Rights of defence

Article 31(1) of Citizenship Directive reads: The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health. In its case law, the CJ has constantly stressed that rights of defence must be given a broad interpretation with a view to guaranteeing a high level of protection. The case law of the CJ on Directive 64/221 remains relevant in the context of the Citizenship Directive. The Santillo case provides a good example in this regard. 

R. V Secretary of State for the Home Department, ex parte Santillo (Case 131/79)):

Santillo was an Italian national who had been convicted in the UK of a number of violent crimes (including rape and indecent assault). He was sentenced to eight years in prison and the judge recommended that he be deported at the end of his sentence. Nearly five years later the Home Secretary made a deportation order against him. Santillo applied for judicial review to quash the order. Article 9(1) of Directive 64/2211 provided: Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory shall not be taken by

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the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person concerned enjoys such rights of defence and of assistance or representation as the domestic law of that country provides for. The CJ had to consider whether the lapse of time between the recommendation for the deportation of Santillo and the adoption of the removal order deprived the judge’s recommendation of its status as an ‘opinion’ under Article 9(1) of Directive 64/221. The CJ stressed that the safeguard enshrined in Article 9(1) could only be effective if the opinion was sufficiently proximate in time to the actual decision to deport the individual concerned. This was to ensure that the factors that had justified the recommendation for deportation in the first instance still existed at the time the order was made. In Santillo, the CJ found that too much time had elapsed between the judge’s recommendation that Santillo be expelled from the UK upon completing his prison sentence and the Home Secre...