Steve Peers

The recent Court of Justice of the European Union (CJEU) decision in the Dano case focused on benefit applications, not deportation. Therefore, it doesn’t directly affect deportation. However, due to the Court’s interpretation of the EU citizens’ Directive, it might indirectly impact deportation.

Earlier this year, I published a blog post about when unemployment could justify deporting or banning EU citizens. This post expands on that analysis, considering the Dano judgment.

Rules on expulsion

Most expulsion (and entry/exit denial) rules are in Title VI of the EU citizens’ Directive (Articles 27-33). These rules concern expulsion or entry bans based on ‘public policy, public security, or public health’. However, they cannot be used to justify expelling or banning unemployed people, because Article 27(1) states they ‘shall not be invoked to serve economic ends’.

However, the Directive clearly allows deporting unemployed EU citizens and their families. Article 15(1) states that some procedural rules for expulsions based on public policy, etc., ‘shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security and public health’. Conversely, the Directive prohibits entry bans for these individuals: Article 15(3) states that ‘Member States may not impose a ban on entry in the context of an expulsion decision’ under Article 15(1).

So, when can EU citizens and their families be expelled other than on grounds of public policy, etc.? Article 14(4) states that ‘an expulsion measure may in no case be adopted’ against EU citizens or their families who are workers or self-employed, or who entered seeking jobs, if (in the latter case) they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. So, Member States can expel job seekers if they don’t meet this condition.

What about former workers or self-employed people who lost their jobs in the host country? Article 7(3) states that worker or self-employed status (and therefore protection from expulsion) is retained in certain cases, like retraining or working for at least a year. Recently, the CJEU confirmed this list is not exhaustive: it also includes those who quit due to maternity for a limited time (see my analysis of the Saint-Prix judgment). But Member States could clarify in their laws that worker or self-employed status is lost whenever permitted by the Directive or case law.

Furthermore, once EU citizens or their families become permanent residents after five years, they have full equal treatment regarding social assistance and no longer meet the initial residency requirements. Therefore, they can’t be deported due to unemployment.

Another important Directive rule is Article 14(3), which states that ‘an expulsion measure shall not be the automatic consequence of…recourse to the social assistance system of the host Member State’ by the EU citizen or family member.

The impact of Dano

A key part of the Dano ruling was the scope of the Directive’s equal treatment rule for social assistance. The Court ruled that equal treatment only applies when someone has a ‘right to reside’ under the Directive: a three-month stay with only a passport, or longer if they are a worker, self-employed, student, or have ‘sufficient resources…not to become a burden on the social assistance system’. The latter two also require medical insurance; students need a declaration of sufficient resources. The Court’s case law clarifies that ‘sufficient resources’ needn’t come from the EU citizen themselves, but can be provided by someone else, like a family member.

Does this ruling mean those without a ‘right to reside’ under these provisions have no protection from expulsion? Absolutely not: the judgment doesn’t prevent them from invoking the protection of Articles 14 and 15.

Here’s why: First, the judgment’s wording: the Court states its ruling applies ‘so far as concerns access to social benefits’ regarding ‘equal treatment’ rules. It consistently refers to equal treatment and social benefits, not complete exclusion from the Directive.

Second, the Directive’s wording, which the Court uses to justify its ruling. The right to equal treatment in Article 24(1) applies to ‘all Union citizens residing on the basis of the Directive’. But Articles 14(3), 15(1), and 15(3) lack this qualification.

Third, the Directive’s overall logic. Regarding Articles 15(1) and (3), since those eligible for residency can’t be expelled except on grounds of public policy etc., those provisions would be meaningless unless they applied to those without residency. Similarly, since applying for social assistance could mean an EU citizen loses residency, Article 14(3) would be irrelevant unless it applied to those without it.

Finally, the Court of Justice already ruled in the Commission v Netherlands case that EU expulsion rules protected those lacking residency under the pre-Directive EU free movement rules. Specifically, the Court stated:

To exclude from the benefit of those substantive and procedural safeguards [on expulsion] citizens of the Union who are not lawfully resident on the territory of the host Member State would deprive those safeguards of their essential effectiveness.

Logically, the same applies here. In fact, rules on expulsions based on public policy, etc., aren’t limited to those with a Directive-based ‘right to reside’, except Article 28(2), which only applies to permanent residents. This wording implies an a contrario reading for the other expulsion rules.

Types of residence in another Member State

It might seem strange that parts of the Directive (like expulsion rules) apply to all EU citizens, while others (like equal treatment) only apply to those with a ‘right to reside’ under it. However, there are other situations where EU citizens reside in another Member State without a Directive-based ‘right to reside’.

One example is children of former workers, or their parent carers. They sometimes have rights not under the Directive, but under the separate Regulation on the free movement of workers (see the Alarape judgment).

Second, they might have residency rights under national, but not EU law (see the Ziolkowski judgment), although their right to equal treatment for social assistance in such cases (developed since the Martinez Sala judgment) seems implicitly overruled by Dano, which links such equal treatment solely to the Directive-based right to reside.

Third, they might reside illegally in the host Member State.

Finally, they might have a child who is a citizen of the host State due to a previous relationship with a national of that state. This raises an interesting question: could there be a parallel with the Ruiz Zambrano judgment, where the Court ruled that expelling the third-country national parent of an EU citizen child was prohibited, as it would effectively remove an EU citizen from EU territory? Could a similar rule apply to the effective removal of a home Member State national to another Member State? Or would that be acceptable since the child, as an EU citizen, would remain within the Union?

We can anticipate some interesting jurisprudence from the Court of Justice.

Barnard & Peers: chapter 13, chapter 16