Category Archives: legislation

EEA refusals: Public policy, public security and public health

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.

The main focus is understandably on people with a history of serious criminal activity.  There is even a lovely colourful map to help guide staff in the direction of a decision.

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

If you are also British, then you are only British!

UKBA’s new EEA regulations (The Immigration (European Economic Area) (Amendment) Regulations 2012) state that when an EEA national is also British, then the EEA free movement regulations do not apply to them:

“EEA national” means a national of an EEA State who is not also a United Kingdom national. (regulation 2, as amended)

This amendment of the definition of an EEA national reflects the ECJ’s judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. (from the Explanatory Note at the bottom)

Ms. McCarthy, in case C-434/09, was (1) not working or otherwise exercising any treaty rights and (2) had not previously asserted her Irish citizenship in a practical way, e.g. by holding an Irish passport.  The court held that EU free movement law did not apply to her or her family.  In their conclusion, the court limits the judgement to somebody:

who has never exercised his right of free movement who has always resided in a Member State of which he is a national and who is also a national of another Member State

These three careful qualifications of the ECJ judgement are entirely missing from these new UK regulations.   UKBA has taken an extremely broad interpretation of the judgement!

Does it matter?

Dutch passportI know a lovely Dutch family who lives in the UK. They do all the curious things you might expect of Dutch people, such as skating on frozen canals, taking camper vans to far corners of the world, and eating Hagelslag on toast.  They have two children who were born in the UK.  Each child has a Dutch passport and clearly thinks of himself as “European”.

We can assume they are also very likely British, because they were born in the UK to working European parents.

Under UKBA’s new interpretation of McCarthy, UKBA simply ignores the Dutch citizenship of each child for the purposes of free movement.   According to UKBA, the entirety of the European free movement regulations simply no longer apply.

Should the children someday marry a person who is not from the EU, UKBA claims their spouse would not have a European right of free movement to enter the UK.   Their only remaining free movement option would be if the Dutch child had worked in a different EU member state and was now “returning” to the UK on the basis of EU law (ECJ 1992 Surinder Singh case).

On what basis could these Dutch children themselves enter the UK?  Remember that UKBA claims the European free movement regulations no longer apply to them, including Regulation 11 (on Europeans entering the UK).   Good news is that if UKBA claims they are British, then they can always enter the UK even without a passport.

This rule also has significant implications for any EU citizen who decides to naturalize as a British citizen.  Once naturalized, EU free movement law will no longer apply to their family members.  Any family member will be required to enter the UK on the basis of traditional British law.

A Polish worker in the UK who naturalizes to be British after working and living in the UK for 6 years may be surprised to find that because of naturalizing, UKBA has disqualified them from using the free movement options they should have to bring their elderly parent(s) to the UK.

On a lighter note, a fun thought-experiment suggests this could solve other problems for UKBA.  It gives UKBA the ability to eliminate all family member free movement to the UK and easily meet their “public commitments” to reduce immigration, all with only one act of parliament. Remember that citizenship policy is solely determined by each member state. Parliament could legislate that all citizens of other EU member states are now also British citizens. Instantly none of their family members would be able to enter the UK on the basis of EU free movement law (since each EU citizen is now also British!).  And if any of those dual citizens does still come, they would do so as a returning British citizen, making the net immigration statistics even better.

political theatre by Mr. Maroni and Mr. Berlusconi

http://www.guardian.co.uk/world/2008/may/22/italy1/print

In a move that appeared certain to cause controversy, the interior minister, Roberto Maroni, said local authorities would be empowered to check on the living conditions of citizens from other EU nations before granting them right of residence.

This is clearly illegal and will by struck down by ECJ if they are ever asked.   It is political theatre by Mr. Maroni and Mr. Berlusconi.

What can be legally required is that citizens from other EU nations are working, are students, or are self sufficient.   There is no requirement about where and how they live, unless there is exactly the same requirement for Italian citizens.

The nice thing is that Roma who are denied residence will be able to bring a lawsuit for compensation from the Italian government.

Directive 2004/38/EC’s definition of “Family Member”

Directive 2004/38/EC defines a Family member (in point 2 of Article 2) to be one of the following:

“family member” Notes and interpretation
(a) the spouse; A partner in a legal same-sex marriage should also be considered a “spouse”.   See discussion on same-sex marriage.
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a [EU/EEA] Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; This applies when the member state treats registered partnership “as equivalent to marriage”. Where that is not true, the partner is not considered a “family member” in this definition, but still has a right of entry as a beneficiary (see beneficiary below). This only covers registered partnerships done by an EU member state. Registered partnerships done in Canada or the US would likely be handled as a beneficiary (see beneficiary below).
(c) the direct descendants who are under the age of 21 or are dependents and those of the spouse or partner as defined in point (b); Children (or grandchildren!) under 21 or those who are older than 21 but still dependent (e.g. students supported by their parents). The child can be of the EU citizen or of the non-EU citizen. This would include a child from a previous relationship or from before the EU-citizen obtained their citizenship.

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

Dependent parents and dependent grandparents of either the EU citizen or of the non-EU spouse or partner. Dependent usually means financially dependent, though there may be other legally reasonable interpretations. For non-dependent parents, see beneficiary below.

These are the people who have the easy-evidence route through the Directive. They can usually prove their relationship with a simple document, like a birth certificate or a marriage certificate, that legally documents the family link. These “family members” (as the Directive states) “enjoy an automatic right of entry and residence in the host Member State” when they are with their EU citizen relative.

There are other people who are also direct beneficiaries of Directive 2004/38/EC. These are people who do not fall into this explicit definition of “family member“, but who are none the less “part of the family”. See the information about Other Beneficiaries of Directive 2004/38/EC

Some European Commission observations on Directive 2004/38/EC

The European commission comments on implementation of Directive 2004/38/EC in their REPORT FROM THE COMMISSION, Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007) 15.2.2008

Directive 2004/38/EC

The control of the correct implementation of the Directive is an absolute priority for the Commission. Between June 2006 and February 2007, 19 infringement procedures were opened for non-communication of national implementing measures: in June 2007 15 of them were open, 4 of which had been referred to the ECJ. In 2007 the Commission launched a study examining the conformity of transposition measures. Certain problem areas of incorrect implementation of the Directive have, however, already been identified on the basis of individual complaints, petitions and EP questions.

Third country family members continue to encounter problems, not only with regard to authorisation of their entry but also with the issuing of residence cards. They have the right to reside with the Union citizens on grounds of their family link alone but some Member States require them to present documents or undergo procedures not allowed by the Directive. The Commission used and will continue to use its powers under Article 226 EC in order to ensure compliance with the Directive.

Many complaints concern obstacles to free movement encountered by Union citizens travelling to another Member State due to the documents demanded by border authorities and air carriers. In June 2005 the Commission invited all Member States to verify that national legislation and practice, including the rules and regulations applied to and by airlines, are in accordance with EC law. Following the Commission’s intervention, there were essentially no further complaints in this particular area.

In a number of judgments (cases C-200/02 Chen, C-215/03 Oulane, C-157/03 Commission v Spain, C-503/03 Commission v Spain, C-258/04 Ioannidis, C-1/05 Jia, C-50/06 Commission v The Netherlands) the ECJ recalled that the right to reside in the territory of a Member State is conferred directly on every Union citizen by Article 18 EC and underlined the need to interpret the right of free movement in the light of fundamental rights and in particular of the right to protection of family life and the principle of proportionality.

visa free travel for school children

from the German embassy web site:

Travel information for school pupils

Basis: Decision of the European Council from 30.11.1994 on the basis of Article K.3.2.b of the Treaty on European Union concerning travel facilities for school pupils from third countries resident in a member state.

Conditions of Article 1 of the decision:

A Member State shall not require a visa of school pupil who is not a national of a Member State but who is legally resident in another Member State and who seeks to enter its territory either for a short stay or transit, if the following conditions are fulfilled:

  1. In the framework of a school excursion, the school pupil is travelling as a member of a group of school pupils from a general education school.
  2. The group is accompanied by a teacher from the school in question.
  3. The accompanying teacher must be able to present a list (on the common form) of the schoolchildren he or she is accompanying, issued by the school in question.
  4. The list must contain ALL traveling pupils.
  5. The list must describe the purpose and the circumstances of the intended stay.
  6. The pupils from third countries must be in possession of a travel document for crossing the border in question.

The French embassy in London has similar information on their web site

School trips exemption:

Pupils/ schoolchildren/ high school students in general education, nationals of countries who would normally require a visa, travelling on a school trip, are exempt from an entry visa into France if their names are entered on a “List of Travellers” form, available from:

British Council
Information Centre
Bridgewater House
58 Whitworth Street
Manchester M1 6BB
Tel. : 0161 957 7755
Fax. : 0161 957 7762

Details are available online at http://www.britishcouncil.org/listoftravellers

This form is not, however, a valid travel document in itself: each pupil must carry a valid individual official document establishing identity and bearing a photograph, such as:
- a valid passport
- a valid travel document
- or a valid ID card

Further information about the schools trip exemption may be obtained from the British Council.

Followup: I talked with a school teacher who was taking a group of children from the UK for a school trip to France.  She said that this idea is fine in principle, but that if a child does not have proper documentation to reside in the UK, then they can not participate because they will not be able to return to the UK after the trip.  This is only good for children who have legal residence in their home member state.

“residing” in an EU member state

Update:  Historically, some EU member states (Ireland and the UK specifically) were requiring family members to have “previously resided” in the EU.  The ECJ case of Metock brought an end to that requirement.  But the various ways you can define residence is still interesting.  This is what EU law says…

If you are an EU citizen or family of an EU citizen, then you are generally legally considered to be “residing” in whichever member state you are physically in, so long as you meet a few basic requirements. This is true for short periods (a weekend visit) or for long periods (a lifetime).

EU citizens have unconditional right to reside in any member state for periods of under three months (see Article 6 below).   There are no requirements that you work, or that you ask permission, or that you have money.  “Unconditional“!

As long as you are self sufficient, working or studying, you also have a right to reside in a member state for a longer period of time (see Article 7 below).

In all cases, as long as the EU citizen is legally resident in a country, the family of EU citizens have the same right to be there.

The core requirements for “residence” (for EU citizens and their families) comes from Directive 2004/38/EC:

Directive 2004/38/EC

CHAPTER III

RIGHT OF RESIDENCE

Article 6 – Right of residence for up to three months

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

Article 7 – Right of residence for more than three months

1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) …[are self sufficient]

(c) … [are a student]

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

As this Directive has been transposed into the law of each European member state, so to have these requirements for residency.

The UK transposition of Directive 2004/38/EC has the corresponding language in describing UK requirements for residency in the UK:

The Immigration (European Economic Area) Regulations 2006

PART 2 – EEA RIGHTS

Initial right of residence

13.—(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.

(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.

The UK rules for issuing EEA family permits (section 21.4.1 – Handling and assessing applications for EEA family permits) are also explicit that the family member of an EU citizen is “resident” if they are lawfully in an EU country:

The non-EEA national could equally have entered the country in some other category (visitor, student etc) and would still be considered as lawfully resident in that Member State. For example, an Indian national married to a French national, who had obtained a visa to enter France as either the spouse of the French national or in some other category (as a visitor, student or work permit holder etc), would be considered ‘lawfully resident’ in France, if, at the time of application, they were abiding fully by the conditions of that visa.

The Irish transposition of Directive 2004/38/EC has the corresponding language in describing Irish requirements for residency in Ireland:

S.I. No. 656 of 2006
European Communities (Free Movement of Persons) (No. 2) Regulations 2006

Residence in the State

6. (1) Subject to Regulation 20, a person to whom these Regulations apply may reside in the State for up to 3 months on condition that he or she –

(a) (i) where the person is a Union citizen, holds a valid national identity card or passport,
(ii) where the person is not a Union citizen, holds a valid passport, and

(b) does not become an unreasonable burden on the social welfare system of the State.

I have resided in three many member states since April 2006: Germany, Italy, France, Ireland, Netherlands, Belgium, Spain, Austria. In each case, I was there for a few days.

For people covered by this Directive (EU citizens and their families), there is no legal requirement that you have to stay for a long time (e.g. more than 6 months) in order to legally “reside” in a member state. This Directive (and it’s local transposition) are the primary EU law regarding residence of EU citizens and their families in other EU member states.