General Rule for Nationals of Member States - Case Study Example

The general rule for nationals of Member s is that they have free movement within the Community: Article 39. Article 39(3) sets out the rights attaching to freedom of movement of workers in the EU stating that they are subject to limitations justified on grounds of public policy, public security or public health. Article 46(1) states that the provisions of the chapter and measures1 taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health. It applies to restrictions on movement and residence; not access to or conditions of employment. Article 55 makes the provisions of Article 46 applicable also to the free movement of services. The public policy, security and health derogations are given a narrow scope and are determined by the ECJ and secondary legislation. Directive 64/2212 provides for the issuing of directives to coordinate these measures. The directive applies to the employed, self-employed and their families, recipients of services, retired persons and students, but not to companies. All the main provisions are directly effective. The derogations are concerned with the specific characteristics of particular persons. The limit to the exercise and scope of the derogations are set by community law with regard to non-discrimination, proportionality, protection for fundamental rights and the various safeguards in Directive 64/221.3 Directive 64/221 seeks to coordinate all measures relating to entry and deportation from member state territories including the issue and/or renewal of residence permits which can be adopted on grounds of public policy, security and health. Member States are free to determine the scope of these concepts on the basis of their national legislation and case law, but within the framework of Community law. Specifically member states cannot plead the need to derogate from Directive 64/221 in order to service economic ends4 such as high unemployment. However, any measures taken on grounds of public policy, public security or public health must be justified by a real and sufficiently serious threat to a fundamental interest of society and must be in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with the proportionality principle. Article 4 is a standstill clause and covers public health exceptions and refers to illnesses in the Annex to the directive. Diseases fall under 2 headings in the Annex. The first heading covers those diseases which are subject to quarantine and listed by the World Health Organisation and are highly infectious specifically mentioned are active or incipient tuberculosis, syphilis, and other infectious diseases or contagious parasitic diseases if they are the subject of provisions for the protection of nationals of the host country. The second heading covers diseases and disabilities which threaten public policy or security such as drug addiction; profound mental disturbance; manifest conditions of psychotic disturbance with agitation, delirium, hallucinations or confusion. Article 4(2) provides that diseases or disabilities which occur after the issue of a first residence permit cannot justify refusal to renew a permit or expulsion. Prima facie the French authorities cannot refuse to renew Enzo's residence permit or to expel him. Although he is a drug addict, his addiction can be shown to have commenced following his arrival in France and the issuing of his first residency permit. He is therefore protected by Article 4(2) which clearly states that the French authorities cannot use his drug addiction to refuse to renew his residence permit or to expel him from their territories in these circumstances. One wonders whether the French authorities may be able to refuse renewal of his residence permit or to expel him under the public policy ground for drug possession. Firstly it is not clear whether Enzo has received a criminal sanction for drug possession. If he has then this might be evidence of personal conduct5 constituting a present threat to the requirements of public policy sufficient to justify the French authorities in either refusing to renew his residence permit or to expel him. Certainly should Enzo be found with unlawful narcotics in his possession again there is dicta that any previous conviction may be used as evidence that he is likely to re-offend following a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy - which is not necessarily the same as an appraisal forming the basis of a criminal conviction.6 In Bouchereau [1977] a French national had twice been convicted for unlawful drug possession in the UK. Marlborough Street Magistrates court wished to recommend his deportation after the second conviction but were unsure whether a judicial recommendation would be a 'measure' within Directive 64/221 and whether his past criminal conviction could be taken into account despite Article 3(2). The ECJ explained that past criminal convictions could be taken into account as tending to suggest a present threat to re-offend and that the past conduct alone could be sufficient to constitute a threat to the requirements of public policy. Any decision should be based upon the gravity of the past or present conduct and the punishment should be proportionate. This judgement appears to have been the decisive factor in R v Home Secretary, ex parte Marchon [1973]7 where the UK court ruled that the past conduct of a consultant psychiatrist who had been convicted of conspiracy to import heroin was sufficient to justify deportation on grounds of public policy. This was despite the fact that there appeared to be no propensity to re-offend. Therefore, Enzo's behaviour must be a genuine and sufficiently serious threat to public policy which is more than the disruption which any breach of the law causes and the public policy which it threatens must affect one of French society's fundamental interests8. In order to access illegal narcotics, Enzo may be associating with criminals. Is it possible that this association would be sufficient to allow the French authorities to expel him or refuse renewal of his permit It would appear that in order for the French authorities to establish this they must show that they would take genuine and effective measures against their own nationals for the same conduct.9 In Adoui and Cornualille [1982] applications for residence permits were refused by the Belgian authorities to 2 French nationals. Adoui worked in a bar that was 'suspect from the point of view of morals' and was ordered to leave the country. Cornualille had been recommended for deportation. The ladies argued on appeal that the Belgian authorities should not be allowed to deport them for activities which if carried out by Belgian nationals would not lead to any repressive measures by the authorities. The ECJ stated that where the member state adopted genuine and effective measures to combat the same conduct amongst its nationals, then the difference in outcome for foreign nationals could be justified, since it is not possible to expel or refuse residence to one's own nationals. Further, a member state cannot expel or refuse a permit to a foreign national for reasons of a general preventive nature. The reasons must be specific to the individual. The French authorities must establish that Enzo's personal conduct is in breach of the peace and public security.10 In Bonsignore v Oberstadtdirecktor der Stadt Koln [1975] the German authorities sought to deport a man who had negligently shot and killed his younger brother in an accident while handling a pistol for which he had no firearms permit. The German court fined him for handling a pistol without a firearms permit but there was no sanction for the death of his brother. The German authorities seeking his deportation argued that his conduct was reprehensible and dangerous to the peaceful coexistence of Germans and foreigners. The ECJ said that the ground of a general preventative nature was extraneous, separate and apart from what Bonsignore's conduct warranted. Advocate General Mayras pithily pointed out that such behaviour on the part of the German authorities was xenophobic.11 Even if the French authorities were able to refuse to renew Enzo's residency permit he could not be deported on that ground alone; the right of residence is a fundamental right of the Treaty under Article 39 and Article 3(3), therefore a failure to produce a residence permit does not justify deportation.12 Enzo would have to be given the opportunity to lodge an appeal and thus obtain a stay of execution before the expulsion order was carried out. It is submitted that the French authorities have insufficient grounds to expel Enzo from France or refuse to renew his residence permit. However, as the cases examined hitherto demonstrate, this has not stopped member states taking action against foreign nationals in the past. Should the representatives of the French authorities carry out either or both of their threats to Enzo then Articles 5 to 9 prescribe the procedures which the French authorities must follow in relation and may be challenged. Enzo must be informed of the grounds upon which the decision to refuse to renew his residence permit or to expel him is based13, unless this is contrary to the interests of the security of the State involved. Since there is no particular urgency he should be given at least 1 month to leave France. Enzo has the same legal remedies in respect of any administrative act or decision as are available to French nationals in this context. Article 9 ensures the minimum requirements of natural justice are met. So a violent sexual criminal was able to appeal to the ECJ when there was a lapse of five years between his conviction and the recommendation for his deportation. Unfortunately for him there was a sufficient proximity in time between the initial recommendation to deport him and the action to do so, as the factors justifying deportation still existed.14 References Craig, P and De Burca, G. (1998). EU Law Text Cases and Materials. 2nd Edition. OUP Steiner, J and Woods, L. (2003). Textbook on EU Law. 8th Edition. OUP Commission to the Council and the European Parliament - Communication Com (1999) 372 Cases R v Home Secretary, ex parte Marchon [1973] 2 CMLR 132. Case 41/74 Van Duyn v Home Office [1974] ECR 1337 Case 30/77 R v Bouchereau [1977] ECR 1999 at 27. Case 36/75 Rutili v Minister for the Interior [1975] ECR 1219 Case 67/74 Bonsignore v Oberstadtdirektor der Stadt Kln [1975] ECR 297 Case 48/75 Royer [1976] ECR 497 Case 131/79 R v Secretary of State for the Home Department ex parte Santillo [1980] ECR 1585 Case 115 and 116/81 Adoui and Cornualille v Belgian State [1982] ECR 1665 Read More