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WHO DOES NOT HAVE THE RIGHT TO ENTER & RESIDE WHEN EU LAW IS
APPLICABLE?
Chapter VI of Dir. 2004/38/EC
ARTICLE 27
Exclusion on the basis of:
- Public health (only entry and first three months (art. 29 Dir)
- Public policy
- Public security
No economic ends
Personal conduct that must represent a genuine; present and sufficiently
serious threat affecting on of the fundamental interests of society
Must comply with principle of proportionality (Suitable + necessary)
CS v Ymeraga -> In CS the Court ruled that a MS is allowed to expel a TCN having a Union Child when
he represents a genuine, present, suffciently serious threat even if this would deprive the Union
citizen to enjoy of his rights!
Santillo -> such past convictions may be relied on as a basis for expulsion ONLY where the past
conviction in some way provides evidence of a present threat, and that the threat must be assessed
by the MS at the time of the decision ordering expulsion (bouchereau + commission v germany)
Bouchereau -> the personal conduct of the individual must represent a ‘genuine, present, and
sufficiently serious threat affecting one of the fundamental interests of society’ General preventive
measures, or justifications isolated from the particular facts of the case, are unacceptable.
calfa -> automatic expulsion for commission of a particular offence, without any consideration of
whether any specific threat was posed by the individual in question, is prohibited.
ARTICLE 28:
Expulsion becomes more difficult if the person has resided longer in the host MS
CJEU Tsakouridis; CJEU P.I. v Oberbürgermeisterin der Stadt Remscheid; CJEU MG; CJEU Onuekwere
The Directive provides for 3 levels of protection:
1. A general level of protection for all individuals covered by EU law
2. An enhanced level of protection for individuals who gained the right of
permanent residence in a MS
3. A super-enhanced level of protection for minors or those who have
resided for 10 years is a host state
Oranopolous -> Before making an expulsion decision on public policy or security grounds, ‘take
account of consideration such as how long the individual concerned has resided on its territory, his
age, state of health, family and economic situation, social and cultural integration in the MS
Tsakouridis -> explained the conditions to be satisfied for expulsion to be lawful in case of ‘imperative
grounds of public security’:
- Stressed to proportionality prinicple (suitability + necessity) + regard to length of residence in
the host MS + consequences of such measure
- Balance must be strcuk (between threat to public security as result of person’s conduct
[taking into account: sentence imposed, involvement in criminal activity, risk of reoffending]
and, on the other hand, risk of compromising social rehabilitation of EU citizen).
- Sentence of 5 years cannot lead to expulsion without the balance being made.
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