Explaining the EU deal: deporting EU immigrants

22 February 2016

The Prime Minister’s renegotiation deal on the UK’s European Union membership is a package of changes to EU rules. It was agreed by European leaders on 19 February 2016. In this series of articles, some of the country’s leading experts in EU law explain the deal and what it changes.

In brief: The EU deal subtly changes free movement rules to make it easier for countries to deport EU immigrants. It does this by beefing up the exceptions to the general rule that EU citizens can work in any EU country they choose.

The EU deal reflects David Cameron’s renegotiation proposal for “stronger powers to deport criminals and stop them coming back, as well as preventing entry in the first place”.

Free movement of people in EU law

EU law sets up the free movement of goods, people, services and capital.

This means that goods can be exported from one EU country and imported into another.

The same applies to people: they can leave their home EU country (France, say) and enter a ‘host’ country (such as the UK) to live and to work.

These rights to free movement are in treaties that form the primary law of the European Union.

But they are not absolute or unconditional. The host country can interfere with free movement rights for reasons like public policy, public security and public health.

These are the ‘derogations’, or exceptions to free movement.

Some exceptions from the general rule of free movement are allowed

In the case of people (not goods, services or capital), the detail of when the interference can occur is in the so-called Citizens’ Rights Directive.

In essence, this law says that the longer a migrant lives in the host country the more rights they get and the harder it is to remove them. It allows:

  • 0-3 months when the UK can refuse individuals entry or deport them for public policy, public security and public health reasons
  • 3 months – 5 years when the UK can deport individuals for public policy and public security reasons
  • 5 years – 10 years when the UK can deport individuals for serious reasons of public policy and public security
  • 10 years plus when the UK can deport individuals for imperative reasons of public security

There have been a lot of cases at the EU court working out what the various terms mean, especially “public policy”. The Citizens’ Rights Directive sums them up by saying that:

  • Public policy or public security decisions to deport someone should be “proportionate”, and based exclusively on the behaviour of the individual involved
  • Previous criminal convictions aren’t on their own a valid reason to deport someone
  • The person’s behaviour must be a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”
  • Countries can’t deport a person just to make an example of them

By beefing up the exceptions, the EU deal makes deporting people easier

Although not as eye-catching as some of the other changes put forward, the revisions to the ‘derogations’ subtly alter the balance of power between individual and state, making it easier for countries like the UK to deport individuals.

First, the deal allows host countries to keep out or deport people whose behaviour is “likely (as opposed to “does”) to represent a genuine and serious threat to public policy or security”.

Second, the deal takes the emphasis away from present conduct by individuals to look much more closely at their past:

“In determining whether the conduct of an individual poses a present threat to public policy or security, Member States may take into account past conduct of the individual concerned”.

The deal adds for the first time that “the threat may not always need to be imminent”. Also new is saying that governments, even in the absence of a previous criminal conviction, can deport EU immigrants on “preventative grounds”.

The European Commission, or administration, has also committed as part of the deal to drafting a law containing these changes.

It will also put out guidelines on the meaning of “serious grounds of public policy or public security” and “imperative grounds of public security”, the phrases currently used for considering whether an individual can be deported after five years and 10 years respectively (see above).

When the Citizens’ Rights Directive is next amended, the Commission will look into changing these lengths of time.

These changes don’t deliver on the Prime Minister’s previous proposals for “tougher and longer” re-entry bans for foreign rough sleepers, beggars and fraudsters. But they do qualify as “stronger powers to deport criminals and stop them coming back”.

Update 22 February

We revised the article to take into account the final version of the EU deal published on 19 February, rather than the draft of 2 February as in the original.

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