Steve Peers

Germany’s recent exploration of expelling unemployed EU citizens has sparked interest among critics of EU free movement in the UK. As this topic gains traction, it’s timely to clarify the circumstances under which EU citizens can be expelled.

While the EU Citizens’ Directive empowers Member States to expel citizens for reasons related to public policy, security, or health, it explicitly prohibits using these grounds for economic reasons. Consequently, the rules for expelling unemployed EU citizens lie elsewhere within the Directive.

Expulsion of EU citizens

EU citizens and their families cannot be expelled based on unemployment once they achieve permanent resident status in the host Member State. This status is typically granted after five years of legal residency or sooner in cases of retirement or permanent inability to work.

Before attaining permanent residence, EU citizens experience two distinct phases. During the initial three months, they have the right to stay with minimal formalities, simply needing to present a residence card or passport. However, they are not entitled to social assistance during this period and risk losing their right to reside if they become an unreasonable burden on the host state’s social assistance system.

After three months, but prior to obtaining permanent residence, specific conditions apply. EU citizens must demonstrate that they are employed, self-employed, financially self-sufficient, enrolled as students with sufficient financial resources, or family members of an EU citizen who meets one of the aforementioned criteria. Maintaining the right to reside hinges on continuously fulfilling these conditions. While failure to meet these conditions could lead to expulsion, the Directive emphasizes that receiving social assistance should not automatically result in expulsion.

Additionally, individuals actively seeking employment and demonstrating a genuine chance of securing employment cannot be expelled. EU citizens facing expulsion are granted the same procedural rights as those facing expulsion on public policy, security, or health grounds.

Three other important rules within the Directive are noteworthy. Firstly, EU citizens retain worker or self-employed status (and therefore protection against expulsion due to unemployment) even if they are temporarily unable to work due to health reasons, involuntarily unemployed but registered with an unemployment office, or engaged in vocational training related to their previous employment.

Secondly, Member States are prohibited from setting a fixed amount for “sufficient resources,” requiring them to consider the specific circumstances of each EU citizen. Thirdly, the children of EU citizens retain residency rights if the EU citizen parent passes away, leaves, or divorces, provided the children are enrolled in education and residing with the remaining parent, even if that parent is unemployed and reliant on social assistance.

Based on these rules, who can and cannot be expelled due to unemployment?

EU citizens are generally shielded from expulsion based on unemployment if they hold permanent resident status; are employed or self-employed; possess “sufficient resources”; have worked for over a year and are registered job-seekers; have worked for less than a year but are registered job-seekers within a six-month grace period; are actively seeking employment and demonstrate a realistic prospect of finding work; are family members of an EU citizen with the right to reside or permanent residence; or are parents caring for an EU citizen’s child as described earlier.

Conversely, EU citizens may face expulsion due to unemployment if they lack permanent residency, lack “sufficient resources,” and have become an unreasonable burden on the social assistance system, provided they are not employed, self-employed, family members of an EU citizen, or parents caring for an EU citizen’s child as previously outlined. Additionally, they might be subject to expulsion if they have worked for less than a year and their six-month grace period has expired, or if they entered as job seekers but cannot demonstrate that they are actively searching and have a genuine chance of securing employment. It’s crucial to note that even if these criteria are met, each case must be evaluated individually, considering legislation and case law.

While certain categories of EU citizens might face expulsion due to unemployment, this is contingent upon individual assessments, procedural rights, and stringent conditions. Member States with more lenient policies toward unemployed EU citizens have the flexibility to tighten regulations as long as they remain compliant with the Directive. A blanket rule automatically expelling individuals after a specific period of unemployment would clearly violate EU law.

Entry bans for unemployed EU citizens

While the regulations surrounding the expulsion of unemployed EU citizens are intricate, the rules governing entry bans for the unemployed are straightforward. The EU Citizens’ Directive explicitly prohibits host Member States from imposing entry bans following expulsion decisions based on grounds other than public policy, security, or health, effectively ruling out entry bans based on unemployment or lack of financial resources.

Considering this provision, it is noteworthy that both Germany and the UK are contemplating some form of entry ban. Germany aims to impose bans specifically on individuals involved in fraudulent activities. This raises questions about the interpretation of the “abuse of rights” clause within the Directive, a matter yet to be clarified by the Court of Justice of the European Union (CJEU).

David Cameron, on the other hand, proposes a 12-month entry ban for anyone expelled for not working, unless compelling reasons for return, such as employment, can be demonstrated. This justification for an entry ban seemingly falls outside the scope of the “abuse of rights” clause but aligns with rules concerning the expulsion of individuals who are unemployed and burden the social assistance system – a scenario where the Directive explicitly prohibits entry bans.

Conclusions

While the Directive permits expulsion of EU citizens due to unemployment and lack of financial resources, this is subject to rigorous conditions, procedural safeguards for those involved, and a case-by-case assessment. Furthermore, subsequent entry bans are explicitly prohibited. Both the German and British proposals appear to infringe upon these rules to some degree: the German proposal by seemingly suggesting automatic expulsion, and the British proposal by advocating for an entry ban. Whether these rules should or could be amended is a separate matter entirely.

Barnard & Peers: chapter 13, chapter 16