If you are an EU citizen, you have a right of free movement which comes from the original treaties of the EU. You can move to another EU member state, and your family members have a right to come with you. For 99% of people in the EU, this is the whole story. There is no permission required to move or travel to a host member state, and the host member state can nether refuse you entry nor tell you to leave (although you typically will have to work or be self-sufficient if you want to stay for more than 3 months).
Chapter VI of Directive 2004/38/EC is the key section: RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH
Article 27 – General principles
1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
How does a member state, such as the UK, transpose this?
UKBA has released their European Operational Policy Notice EOPN 01/2013 Assessing applications in accordance with public policy, public security or public health [FOI source] which codifies the (January 2013) UK approach to this part of the free movement directive. It takes the general principles of Article 27 (above) and makes them a little more concrete for use by staff. This EOPN is in fact a quite decent review of both the general principles and law surrounding refusal of entry into a member state, and more generally what is required for the normal issue of every Residence Card to a non-EU family member.
Some general UKBA guidelines for applying Article 27, and codified in Regulation 21, are outlined on page 6:
- The decision must not be taken to serve economic ends.
- The decision must comply with the principle of proportionality; For example, refusal action against a person who has committed a single minor offence would not be proportionate.
- The decision must be based exclusively on the personal conduct of the person concerned;
- The personal conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
- Matters isolated from the particulars of the case or which relate to considerations of general prevention/deterrence do not justify the decision. Decisions must not be made based on considerations of general deterrence, “general preventative grounds” or “general risk”. They must, save in a small number of extremely rare cases, be based on the actual threat posed by the individual concerned;
- A person’s previous criminal convictions do not of themselves justify the decision so you cannot rely solely on a person’s past convictions as the basis on which to take a decision. However an example of where previous convictions might be relevant is in circumstances where the applicant is a persistent offender and his offending is escalating in seriousness. Here, the pattern of offending could potentially provide evidence of genuine, present and sufficiently serious threat.
There is lots of detail in the document, but a couple of things stand out. Entry refusal has to be about the personal behaviour and ongoing threat of a specific person. It has to be proportionate. And it can not be taken to serve economic ends.
If you have a criminal history, they must have been serious crimes you have been convicted of and given prison time for. Public security and public health are barely mentioned, rarely invoked, and UKBA would likely want to retain the flexibility the comes with not having written policy.
Barring re-entry for 12 months for EU nationals who are sleeping rough or begging (or their family members)
It is hard to reconcile the content of the EOPN 01/2013 with a Guardian article from Nov 27, 2013 entitled EU migrants: David Cameron sets out more benefit restrictions
In the package, Cameron announced […] any EU national sleeping rough or begging will be deported and barred from re-entry for 12 months “unless they can prove they have a proper reason to be here, such as a job”.
How might this possibly work to legally to bar an EU citizen from re-entry to the UK for 12 months because they were at one point homeless and/or begging?
Prof. Elspeth Guild writes, in the generally excellent summary, Cameron’s Proposals to Limit EU Citizens’ Access to the UK: Lawful or not, under EU rules?
Deporting rough sleepers and barring their re-entry
This is also a problematic proposal. The first group of people who cannot be subject to deportation and an entry ban for rough sleeping are those EU citizens who are working or seeking work in the UK. Some recent studies indicate that homelessness among working EU citizens in a host state is an increasing problem resulting from low pay and high costs of housing. This problem needs to be tackled by assuring that they obtain at least the minimum wage and assistance to find housing. Secondly, as EU citizens are free to move and reside anywhere in the EU for three months without hindrance, they should not be subject to deportation and a re-entry ban just because they are sleeping rough. The Directive does permit member states to extinguish the right of residence of EU citizens where they are an unreasonable burden on the social assistance system. But sleeping rough is not such a burden, indeed it is not a burden on the social assistance system at all. Indeed, sleeping rough does not cost the social assistance system of a member state any money thus it cannot be a burden according to the Court of Justice.
Similarly, barring re-entry to the UK would not be justified in such a case as it is a fundamental interference with the right of free movement. The third group is that of EU citizens who have been in the UK for more than three months but are not working, seeking work or otherwise economically active. Here there is a lack of clarity on whether they are still exercising their rights as EU citizens and thus are entitled to a right of residence.
Previous UKBA policy notes on the same topic
Previous policy notes were less detailed and less generally interesting to read, but do contain details about the Criminal Casework Directorate (CCD) making deportation decisions
- 21st December 2011 EOPN: Refusals of documentation on public policy or public security grounds
- 10th April 2012 EOPN : Interim Policy Instruction – PNC Checks in European Casework