European criminals who commit even minor offences will be deported and banned from the UK for up to 10 years. Making the announcement at the Tory Party Conference Amber Rudd, the Home Secretary, said the Government will not need to wait until Brexit to introduce the measures.

Rudd said that it would be made clear to UK courts what to take into account when considering deporting EU criminals and to put them on a similar footing to other foreign offenders. She added that EU nationals who repeatedly committed minor crimes would be kicked out of the country and face a lengthy ban, from between five and 10 years.

What is the law on deportation of European Economic Area (EEA) nationals?
EU law establishes additional rights in respect of EEA nationals and their family members from deportation/expulsion, as compared to those from outside of the EU, no doubt as a means of promoting the internal market, including the market for labour.

The only lawful basis on which a EEA national worker, self-employed person or jobseeker (or their family members) may be denied leave to enter or reside in a member state, or indeed be expelled from the host state in which they have exercised EU free movement rights in taking up residence, is on the narrowly interpreted public policy or public security grounds set out in Articles 27 and 29 of the Citizenship (Free Movement) Directive 2004/38. These are given effect in UK law under the Immigration (European Economic Area) Regulations 2006.

1. The remedy of expulsion may be taken only if it is shown to be proportionate (R v Bouchereau), taking into account factors including:
2. Degree of integration of the persons concerned in the host State;
3. Length of their residence in the host Member State;
4. Age;
5. State of health, family and economic situation; and
6. Links with their country of origin

The greater the degree of integration of EEA nationals and their family members in the host Member State, the greater will be their protection against expulsion. Therefore it would only be in exceptional circumstances – for example, where there are imperative grounds of public security (Land Baden-Württemberg) that an expulsion measure might lawfully be taken against an EEA national who has resided for many years in the territory of the host Member State.

In view of the emphasis on personal conduct, a desire on the part of the authorities to deter other people from committing similar crimes is not an acceptable basis justifying expulsion (Bonsignore). Instruments such as the UN Convention on the Rights of the Child 1989 would similarly suggest that, only in the most exceptional case, could an EEA citizen who is a minor and whose family resides in the host State, be lawfully expelled to their country of origin.

Can EEA citizens be banned for five to 10 years?
Article 31 of the Citizenship Directive sets out strict procedural safeguards which have to be followed in taking any decision regarding the denial or restriction of residence, or expulsion (R. v Home Secretary ex p Santillo). Any action taken by the authorities must be properly justified before the national courts, and where the EEA national has a right to seek vindication of his and his family’s free movement rights under EU law (ex p Shingara and Radiom)

In any event, there can be no expulsion for life. In the case of Donatella Calfa, the European Court of Justice declared a provision of Greek law, which required the imposition of an order of expulsion from Greek territory for life of nationals of other Member States convicted in Greece of drugs offences, to be incompatible with EU law. It was deemed a disproportionate interference with the fundamental EU principles in favour of the free movement of persons.

The Citizenship Directive also gives any EEA citizen (and their family members) who have been excluded from the territory of a Member State, the right to submit a fresh application after a reasonable period, and in any event after a three-year period from enforcement of the final exclusion order.

How have the UK courts interpreted these EU measures?
The way UK courts have dealt with EEA deportation can be seen in cases such as Vassallo (Qualifying residence; pre-UK accession) [2014] UKUT 313 (IAC). Mr Vassallo was an Italian national. However, he was born in 1948 and had resided in the UK since 1952. He was to all intents and purposes British, but lacked British nationality. He had once been on a family holiday to Italy but spoke no Italian and had no connections there. In the UK, though, he had committed many criminal offences (68 in fact). The Upper Tribunal, reminded itself of its own reasoning in Essa (EEA: rehabilitation/integration) [2013] UKUT 316 (IAC) where it had stated:

We observe that for any deportation of an EEA national or family member of such national to be justified on public good grounds (irrespective of whether permanent residence has been achieved) the claimant must represent a present threat to public policy. The fact of a criminal conviction is not enough. It is not permissible in an EEA case to deport a claimant on the basis of criminal offending simply to deter others. This tends to mean, in case of criminal conduct short of the most serious threats to the public safety of the state, that a candidate for EEA deportation must represent a present threat by reason of a propensity to re-offend or an unacceptably high risk of re-offending. (Emphasis added)

Although on the facts Mr Vassalo had not acquired permanent residence, he was nevertheless saved from deportation by the low risk of reoffending assessment. His past convictions were not, of themselves, sufficient to justify deportation in EU law.

Is this simply rhetoric?
Whilst living in the UK, EEA nationals are clearly expected to abide by the UK’s laws. If an EEA national commits a criminal offence in the UK, then they do risk deportation under the 2006 Regulations.

However there are various hurdles that Amber Rudd, as the present Home Secretary, must clear before she can deport an EEA national from the UK. Not least that the person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. It therefore remains unclear, given that protection against removal is set out in the EU Treaties (Article 45(3) TFEU), how UK legislation can be further toughened in this area? The UK remains subject to EU Treaty laws until Brexit, and the UK courts already take into account a number of factors when considering the deportation of EEA criminals. However they do not do so to the extent of aligning EEA national’s fortunes more closely with those from outside the EU. In short this is because, so far as removal and deportation are concerned, those exercising EU rights have much greater rights than those not exercising such rights, who are subject to immigration control.

First Appeared on Justice Gap here