European Court of Justice: 'Zambrano' carer for a child cannot be expelled solely for criminal record
13 September 2016
EIN
The Court of Justice of the European Union has ruled
in two judgments today that a non-EU citizen who has the sole care of a
child who is an EU citizen cannot be expelled from a Member State, or
automatically refused a residence permit, on the sole ground of a
criminal record if the expulsion, or refusal, obliges the child to leave
the territory of the EU.
EIN members can read the judgment in Secretary of State for the Home Department v CS (Case C-304/14)
here and the judgment in Marin v Administracion del Estado (Case C-165/14)
here.
CS is the mother and sole carer of a British child.
According to the
Guardian,
while the European Court of Justice advised that CS should not be
automatically deported from Britain simply because of her criminal
record, it also said that it should be left to British judges to decide
if the deportation can go ahead.
Following the judgment, a Home Office spokesman was quoted by the
Telegraph
as saying: "We are considering the implications of today’s finding, but
it should be emphasised this represents guidance on a point of law – it
is not a final judgment on this deportation case. Proceedings are
ongoing in the Immigration Court’s Upper Tribunal. We await its judgment
so it would be inappropriate to comment further at this stage."
For further details, see the Court's press release below:
________________________
Court of Justice of the European Union
PRESS RELEASE No 95/16
Luxembourg, 13 September 2016
Judgments in Case C-165/14
Alfredo Rendón Marín v Administración del Estado and Case C-304/14
Secretary of State for the Home Department v CS
EU law does not permit a
national of a non-EU country who has the sole care of an EU citizen who
is a minor to be automatically refused a residence permit or to be
expelled from the territory of the European Union on the sole ground
that he has a criminal record
In order to be capable of being adopted, an
expulsion measure must be proportionate and founded on the personal
conduct of the national of a non-EU country and that conduct must
constitute a genuine, present and sufficiently serious threat adversely
affecting one of the fundamental interests of the society of the host
Member State
Because of their criminal records, two nationals of
non-EU countries were, respectively, refused a residence permit and
served with a deportation order by the authorities of the host Member
State – the State of nationality of minor children of whom they have
sole care and who possess citizenship of the Union. Alfredo Rendón Marín
has sole care and custody of a son, who has Spanish nationality, and a
daughter, who has Polish nationality. The two minor children have always
resided in Spain. CS is the mother and sole carer of a child of British
nationality who resides with her in the United Kingdom.
Members of the press should note that Case C-304/14
was brought before the Court of Justice anonymised by the referring
United Kingdom tribunal, which had made an anonymity order so as to
protect the interests of CS's child.
The Tribunal Supremo (Supreme Court of Spain) and the
Upper Tribunal (Immigration and Asylum Chamber) (United Kingdom) asked
the Court of Justice whether the existence of a criminal record may in
itself justify refusal of a right of residence or expulsion in the case
of a national of a non-EU country who is the sole carer of a minor who
is an EU citizen.
By its judgments delivered today, the Court holds, first, that EU
law precludes national legislation under which a national of a non-EU
country who has the sole care of a minor who is an EU citizen is
automatically refused a residence permit, or must be expelled, on the
sole ground that that national has a criminal record where the refusal
or expulsion obliges the child to leave the territory of the European
Union.
The Court begins by explaining that the directive on
the freedom of movement and residence of EU citizens and their family
members
[1]
applies to EU citizens and their family members who move to or reside
in a Member State other than that of which they are a national.
Consequently, that directive applies to the situation of Mr Rendón Marín
and his daughter of Polish nationality, but it does not apply to the
situation of Mr Rendón Marín and his son of Spanish nationality or to
that of CS and her son of British nationality as these children have
always resided in the Member State of which they are nationals. Only Mr
Rendón Marín and his Polish daughter therefore qualify for a right of
residence under the directive.
The Court states next that the FEU Treaty confers the
status of EU citizen on every person who is a national of a Member
State. By virtue of that status, every EU citizen has the right to move
and reside freely within the territory of the Member States.
Accordingly, the Court finds that Mr Rendón Marín's son and CS's child,
who are EU citizens, qualify for such a right. The Court points out that
the FEU Treaty precludes national measures which are liable to
deprive EU citizens of the genuine enjoyment of the rights conferred by
virtue of their status as EU citizens. Such deprival occurs where
refusing a national of a non-EU country a residence permit or expelling
him would have the effect of obliging his child, an EU citizen in his
sole care, to go with him and, therefore, to leave the territory of the
European Union.
However, the Court explains that the status of EU citizen does not affect the possibility for the Member States of justifying a derogation
from the right of residence of EU citizens or their family members
(whether that right is exercised under the directive or under the
Treaty) on grounds, in particular, of public policy or public security. Such a derogation must observe the Charter of Fundamental Rights and the principle of proportionality and must be based on the personal conduct of the individual concerned in order to ascertain whether he represents a genuine, present and sufficiently serious threat affecting the society
of the host Member State. For the purpose of determining whether that
derogation is consistent with the principle of proportionality, account
should be taken of certain criteria, such as the duration of his
residence, his age, his state of health, his family and economic
situation, his social and cultural integration, the extent of his links
with the country of origin and the degree of gravity of the offence.
So far as concerns the situation of Mr Rendón Marín,
the Court explains that his criminal conviction in 2005 cannot in itself
constitute grounds for refusing a residence permit, without assessment
of his personal conduct or of any danger that he could represent for the
requirements of public policy or public security.
In addition, the Court accepts that, in exceptional circumstances, a
Member State may adopt an expulsion measure by relying on the exception
linked to upholding the requirements of public policy and safeguarding
public security, concepts which must be interpreted strictly. In order to justify such an expulsion measure, it is necessary to assess whether,
having regard to the criminal offences committed by a national of a
non-EU country having the sole care of a minor who is a Union citizen,
that national's personal conduct constitutes a genuine, present and
sufficiently serious threat that may adversely affect one of the
fundamental interests of society. In this connection, account must
be taken of the criteria set out above. The Court holds that, in CS's
case, it is for the United Kingdom tribunal to assess specifically the extent to which she is a danger by weighing up the interests involved
(that is to say, the principle of proportionality, the child's best
interests and the fundamental rights whose observance the Court
ensures).
NOTE: A reference for a preliminary ruling
allows the courts and tribunals of the Member States, in disputes which
have been brought before them, to refer questions to the Court of
Justice about the interpretation of European Union law or the validity
of a European Union act. The Court of Justice does not decide the
dispute itself. It is for the national court or tribunal to dispose of
the case in accordance with the Court's decision, which is similarly
binding on other national courts or tribunals before which a similar
issue is raised.
Unofficial document for media use, not binding on the Court of Justice.
The full text of the judgments (C-165/14, C-304/14) is published on the CURIA website on the day of delivery.
Press contact: Holly Gallagher (+352) 4303 3355
[1] Directive
2004/38/EC of the European Parliament and of the Council of 29 April
2004 on the right of citizens of the Union and their family members to
move and reside freely within the territory of the Member States
amending Regulation (EEC) No 1612/68 and repealing Directives
64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC,
90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).
Hier gevonden:
https://www.ein.org.uk/news/european-court-justice-zambrano-carer-child-cannot-be-expelled-solely-criminal-record
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