Court spells out conditions for deporting an EU citizen
By Nathalie Vandystadt | Wednesday 23 May 2012
A European citizen residing in an EU state other than his state of origin may be deported for committing a “particularly serious crime,” even if the person has lived for more than ten years in the state. This is the gist of a judgement handed down by the EU Court of Justice, on 22 May, in Case C-348/09 concerning an Italian national convicted for raping a minor in Germany.
European citizens’ right to move and reside freely in the EU (2004 directive) is limited by violations of public policy, public security or public health. But the host member state may deport a European citizen who has completed a continuous period of residence of five years “only on serious grounds of public policy or public security”. After ten years, a deportation order may only be issued “on imperative grounds of public security”.
In this case, it is the risk of a repeated infringement that poses a problem. Mr I has lived in Germany since 1987. He is single and has no children. He has never earned a school-leaving certificate or professional qualifications and has worked in Germany only occasionally. In 2006, the regional court of Cologne sentenced him to a term of imprisonment of seven years and six months for sexual assault, sexual coercion and rape of a young girl, who was eight years old at the time the offences began. The acts took place between 1990 and 2001. Mr I will have completed his sentence in July 2013.
In 2008, the German authorities determined that Mr I had lost the right of entry and residence under German law, on grounds relating in particular to the serious nature of his crime and the risk of re-offending, and ordered him to leave Germany, failing which he would be deported to Italy. Mr I brought an action against the decision.
The EU court, asked for an interpretation, points out that member states are essentially free to determine public security requirements. While such requirements must be strict to prevent states from deporting European citizens without any control by EU institutions, member states are perfectly at liberty to consider that criminal offences like those committed by Mr I constitute a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population. Consequently, such offences are covered by the concept of “imperative grounds of public security”.
The national court will have to determine whether this is the case. If the deportation order is confirmed, Germany will still have to determine whether the individual is “currently and genuinely” a threat to public security at the time of enforcing the order, set to take place more than two years after it was issued. It must also assess whether “any material change in the circumstances” has occurred in the meantime. Germany must also take account of how long the individual has resided on its territory, his age, state of health, family and economic situation, social and cultural integration and the extent of his links with Italy.