Skip Content
 

News

BLOG POST: Migration is not a crime!

19 August 2015

Deportation and removal of EU citizens from the UK – when are they permitted?

As European Union nationals, we have the right to move to other EU countries to live, work and study, as well as look for employment. These rights are enshrined in the Treaty on the Functioning of the European Union and defined in the ‘Citizens Directive’ (2004/38). In the UK, this Directive was implemented by the Immigration (EEA) Regulations 2006 and if you receive a removal decision, it is likely that it will refer to this piece of legislation.

It is possible to live in another EU country first for three months without any conditions (apart from having a valid passport or ID card). After that, if the person starts working, studying or has enough money to live off without becoming an ‘unreasonable burden’ on the host Member State. Starting your own business, being self-employed or working for an employer all count, as does part-time work, as long as they are ‘genuine and effective’, that is are not just marginal activities or performed occasionally, and that it brings a regular income that can sustain basic needs. Students and those with sufficient resources also need to have comprehensive sickness insurance, which in the UK is currently understood as some form of private health insurance. If you are entitled to healthcare in your home country, that would count too but bear in mind that such entitlements are usually lost after you have lived abroad for a while (this is different in every country).

It is also possible to move to another EU country to look for work, at least for six months. Family members of EU citizens who stay in their new country and fall under any of the categories described above have the right to move and live there as well. It doesn’t matter if they themselves are from the EU or from a non-EU country. It’s important to remember, however, that only some categories of family relationships ‘count’: spouses and civil partners (also those of the same sex), children and grandchildren under 21, parents and grandparents, if they depend materially on their EU child, as well as older children, again, if they are dependent. Brothers and sisters, for example, don’t enjoy these rights to the same extent but may fall under the ‘extended family members’ category.

Here's an example:

Marcin is Polish and moved to London in June 2015 with his wife, Clara, her mum, Sofija and the couple’s baby, Adrian. Clara and Sofija are Serbian and Adrian is a dual Polish-Serbian national. Marcin is a chef and started his own catering company shortly after their arrival. Clara is focusing on being a mum for now and her mum is not in a position to work anymore. Marcin’s business is going well and the couple support Sofija financially. Because of this, as well as the fact that Marcin is working, Clara (as his wife), Sofija (as her dependent parent) and Adrian (as a child under 21) all have the right to be in the UK.

 

Permanent residence

After 5 years of living in another EU country and performing any of the activities described above (or a combination of these), EU citizens gain permanent residence status. This is in recognition of their level of integration in their new home and means that they have stronger protection from expulsion than those who have lived there for a shorter period.

Deportation vs removal – definitions

Deportation is when a person is removed to another country on the basis of having been convicted of a crime committed in the UK. This usually applies to people who have been sentenced to over 12 months. However, the AIRE Centre is also aware of suspected criminals being deported as part of the so-called Operation Nexus. We are currently working towards challenging this practice. Removal (or administrative removal) is when a person did not commit a crime but is being sent back to their country on the basis that they are not exercising Treaty rights, i.e. not working or looking for work, studying, being self-sufficient, a family member, etc.

Does this mean that EU citizens who don’t fall into any of the categories can simply be sent back? This seems to be the emerging position of the UK authorities. However, we don’t believe that it is lawful, proportionate or in any way justified in many cases. Let’s look at the UK’s point of view first.

The UK Immigration (EEA) Regulations 2006, which we mentioned above, allow for administrative removal of EU citizens and their family members in some circumstances. Under Regulation 19(3)(a), an EU citizen may be removed where there is evidence that the person never had, or stopped having, what the UK authorities call a ‘right to reside’. Under Regulation 19(3)(c), an EU citizen may be removed on the grounds of an ‘abuse of rights’. This is defined in the following broad terms:

 

  •          intending to circumvent the requirement to be a qualified person;
  •          trying to return to the UK within 12 months of a previous removal and not being able to show to they will have a right to reside after     coming back;
  •          entering or trying to enter a marriage of convenience or helping another person in doing so; trying to ‘obtain’ a right to reside by         fraud or helping someone else do so.

 

According to the Regulations, the Secretary of State may take a removal decision on the grounds of abuse of rights where they have reasonable grounds to suspect that such abuse is taking place and it is proportionate to do so.

From these Regulations, it seems that the UK has broad powers to send EU citizens back to their home countries AND not allow them to come back in. However, EU free movement law gives quite strong protection against expulsion to EU migrants and we strongly believe that the measures described above violate it quite clearly.

Protection from expulsion

Under EU law, EU citizens’ freedom of movement can only be restricted in very specific circumstances. Under Article 27(1) of the Citizens Directive referred to above, Member States may restrict this freedom of movement and residence only on grounds of public policy, public security or public health. The Directive further specifies that ‘these grounds shall not be invoked to serve economic ends.’ So, for example, it is not enough for a government to decide that in order to save some money, as a matter of policy, it will send other EU countries’ citizens who are on benefits away.

Moreover, a deportation or removal decision can only be taken against those EU citizens who acquired the right of permanent residence on serious grounds of public policy or public security (Article 28(2) of the Citizens Directive). Note that the public health ground is not applicable at all here and that the requirement for the other concerns to be serious has appeared. This is because permanent residents enjoy stronger protection from expulsion that those with shorter residence periods.

EU citizens with 10 years’ residence in the UK (in accordance with the Directive), as well as EU citizen children (unless the removal would be in their best interest), can only be deported or removed on imperative grounds of public security (Article 28(3) of the Directive). As you can see, protection from expulsion is even stronger for EU citizens and their family members in this category.

In all cases, the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Moreover, every removal or deportation decision must comply with the fundamental EU law principle of proportionality.

What this all means is that if the authorities propose to remove or deport an EU citizen in any of these three categories, they need to show how their presence may constitute a genuine, present and sufficiently serious threat to public policy, security or health, as appropriate, and weigh this against considerations such as how long the person has lived in the country, his/her age, state of health, family and economic situation, social and cultural integration into the host society and the extent of his/her links with the country of origin.

Moreover, in contrast to what seems to be the practice under Operation Nexus, for example, Article 27(2) of the Directive clearly states that ‘previous criminal convictions shall not in themselves constitute grounds for taking such measures.’

Here's an example:

Flora is a 76-year old Romanian woman and who has been living in the UK since 2008. She came to the UK with her extended family and has been living them throughout this time. Her son, Sorin, has been working as a self-employed mechanic ever since their move and Flora has been dependent on him. Last year, there was some violence in Flora’s family and she ended up leaving her home with nowhere to go. She didn’t know if she could access any support from the authorities or what to do in this situation and ended up sleeping on park benches and having to steal food to survive. She was stopped by the police and taken to a custody suite, where she was served with a removal decision on the basis that she was not a worker, jobseeker, student, family member, etc. Luckily, Flora was able to obtain legal advice and appeal the decision, which was unlawful as (a) she has been a permanent resident since 2012 having been dependent on her EU worker son for over 5 years and (b) her offence was minor and did not constitute a sufficiently serious threat to public policy or public security.

To summarise, the Directive does not envisage the removal of EU citizens only because they don’t have or lost their ‘right to reside’. It also doesn’t allow for deporting them solely on the basis of having committed petty crime or minor offences (for instance theft or ‘vagrancy’, i.e. sleeping in the street or begging) or just because they had a conviction in their home country. The grounds for removal or deportation have to be sufficiently serious.

 

For these reasons, The AIRE Centre believes that the purported powers to remove, bar from re-entry, and question Union citizens who are not (or are suspected of not) exercising a right to reside in the UK under the Immigration (European Economic Area) Regulations 2006 are incompatible with EU law. They fail to comply with safeguards provided by European Union law: in particular, those laid out in the Treaty on the Functioning of the European Union and Directive 2004/38, as detailed above. We have raised our concerns with the European Commission and we would encourage any EU citizens who are issued with removal directions which they do not feel are justified to seek an independent appeal against such decision. 

 

This blog post was written by Anna Blus & Matthew Moriarty, Legal Project Managers at The AIRE Centre. It was originally published in the Roma Support Group's August 2015 Newsletter

 

You can find the Citizens Directive (2004/38/EC) in most EU languages here:

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32004L0038

A full, regularly updated version of the Immigration (EEA) Regulations 2006 is available here:

http://www.eearegulations.co.uk/Latest

 

To keep up to date with all our work follow us on Twitter @AIRECentre

If you would like to support our work or get involved, donate now or get in touch!

< Back