The Citizens’ Directive provides significant protection to EEA citizens and their family members facing expulsion from the host Member State. These are the key principles in the Directive: You can see the whole provision here:
Article 27
General principles
- 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.
- 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. …
Article 28
Protection against expulsion
- 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.
- 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.
- 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 10 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.”
From this you can see that:
- – There are limited grounds for expelling an EEA national – basically public policy/security/health (we will refer to these generally as “public interest” reasons). Public policy and security require a “genuine, present and sufficiently serious threat affecting one of the fundamental interest of society”
- – Expulsion may not be pursued for economic ends
- – Decisions must be proportionate
- – The ability to remove must be based on the individual’s current circumstances and personal conduct: expulsion for reasons of “general prevention” or simply “previous criminal convictions” will not do
- – Relevant considerations are length of residence, age, health, family and economic situation, social and cultural integration with the host Member States and links with country of origin
- – There are different levels of protection against expulsion – the general limitations just set out apply for those exercising EEA rights generally, but for those with permanent residence, only “serious grounds of public policy/security” will do, and for EU nationals who have 10 years residence or EU citizen children, only imperative grounds of public security can suffice
These considerations are transposed into domestic law via Reg 27 of The Immigration (European Economic Area) Regulations 2016. You can see the whole provision here.
Decisions taken on grounds of public policy, public security and public health
27.—(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989(1).
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.
(7) In the case of a relevant decision taken on grounds of public health—
(a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010(2); or
(b) if the person concerned is in the United Kingdom, any disease occurring after the three month period beginning on the date on which the person arrived in the United Kingdom, does not constitute grounds for the decision.
Basically these domestic provisions contain the same provisions as just summarised – however Reg 27(8) introduces a special set of criteria for considering whether the fundamental interests of society ae threatened.
(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).
Note that Reg 27(5) states that the past conduct of an individual is to be take into account, and that the threat to public policy need not be an imminent one.
The removal provisions bite at every potential stage whereby an individual interacts with immigration control system:
- – The Secretary of State may refuse to issue, revoke or refuse to renew relevant documents attesting to permanent or temporary residence on public interest grounds (Reg 24)
- – The Secretary of State may make an exclusion order on public interest grounds (Reg 23(5))
- – Immigration officers may refuse admission at the border for public interest reasons (Reg 23(1)) or where there are reasonable grounds for suspecting future misuse of the right to reside (Reg 23(3)) or where there is a deportation or exclusion order in force (Reg 23(2))
- – Residence documents including permanent residence documents can be revoked or not renewed where any EEA rights has ceased to apply (Reg 24(3)-(4))
- – Similarly, an Immigration Officer may revoke residence documents on a person’s arrival in the UK where they do not hold the asserted right (Reg 24(7)) – and an entry clearance officer may do so before they travel (Reg 24(6))
- – The right to reside may be cancelled on public interest grounds where the individual holds the right to reside under the 2016 Regs but they cannot be removed (Reg 24(7))