Derogating from the Free Movement of Persons: When can EU Citizens be Deported?

Abstract

Ten years ago, the Bayerisches Landessozialgericht referred four questions to the Court of Justice for a preliminary ruling; the resulting judgment on María Martínez Sala’s entitlement to a child-raising allowance finally yanked the concept of Union citizenship from its sluggish hinterland in the EC Treaty and launched the Court and the Community legislature on a mission—to uncover the substantive content and scope of citizenship, and to realise its potential as an autonomous rights-giving force. The intervening decade has seen enthusiastic, if not always coherent, progression of this vocation, and thereby renewed animation of Community law on the free movement of persons. Much work in this field seeks to plot the evolving rights for EU citizens; but what about the position of the Member States? Their capacity to determine and manage their own immigration rules had already been eroded by ‘traditional’ Community law on workers, establishment and services.

The Roma and European Union citizenship: in search of a humane answer from the EU

“…As the French and Italian events show and as Nic Shuibhne rightly observes, 'it can hardly be said that Member States no longer attempt to remove EU citizens from their territories; on the contrary, this seems still to happen with fairly striking frequency'. 115 This can be particularly dangerous when, with the excuse of insanitary living conditions and under the cover of 'voluntary return', EU citizens are threatened with eviction and offered no housing alternative -with such measures not being technically considered 'deportation orders', authorities escape the legal obligation of respecting the requisites which the expulsion of EU citizens must fulfil. 116 In addition, the cases mentioned above have made substantial concessions to Member States' discretion and securitisation agendas, 117 and (even if subject to the principle of proportionality) the lack of sufficient resources and comprehensive sickness insurance has effectively worked as a fourth derogation ground all along.…”

“…116 In addition, the cases mentioned above have made substantial concessions to Member States' discretion and securitisation agendas, 117 and (even if subject to the principle of proportionality) the lack of sufficient resources and comprehensive sickness insurance has effectively worked as a fourth derogation ground all along. 118 As noted in Section 2 above, EU citizens of Romania and Bulgaria belonging to the Roma minority were expelled in 2010 from settlements in France and were then served with an expulsion order. In an attempt to facilitate the removal of those people, the French authorities offered financial incentives such as €300 per adult and €100 per child before repatriating them to Romania.…”

The Roma and European Union citizenship

“…exercise of Member States' powers and the comprehensive and generous wording of Articles 27-33 of the Citizenship Directive would appear to offer EU citizens and their families reasons to believe that their expulsion from a host EU Member State may only occur in extreme circumstances, recent developments suggest that this may be an excessively optimistic conclusion. As the French and Italian events show and as Nic Shuibhne rightly observes, 'it can hardly be said that Member States no longer attempt to remove EU citizens from their territories; on the contrary, this seems still to happen with fairly striking frequency' 115. This can be particularly dangerous when, with the excuse of insanitary living conditions and under the cover of 'voluntary return', EU citizens are threatened with eviction and offered no housing alternative -with such measures not being technically considered 'deportation orders', authorities escape the legal obligation of respecting the requisites which the expulsion of EU citizens must fulfil.116 In addition, the cases mentioned above have made substantial concessions to Member States' discretion and securitisation agendas, 117 and (even if subject to the principle of proportionality) the lack of sufficient resources and comprehensive sickness insurance has effectively worked as a fourth derogation ground all along.…”