Brexit and Rights Engagement Network
Despite the fact that EU citizens enjoy the right to move to and live in other Member States, the UK Government has seemingly recently ramped up efforts to deport larger numbers of those living here. In the year ending June 2017, 5301 EU citizens were deported from the UK – a 20 per cent rise compared with the previous year. This is a troubling figure, especially considering that the law is supposed to protect EU citizens from deportation. The charity Bail for Immigration Detainees has also noticed a rise in EU nationals involved in deportations.
© 2016 UK Parliament/Jessica Taylor
Many EU citizens remain anxious about their future in the UK after Brexit, and the government has unfortunately sent mixed messages as to whether they will continue to enjoy the same rights or whether they will be obliged to leave. Debate already exists in the UK over whether certain individuals ‘deserve’ to be expelled, from people who are not working but seeking welfare benefits, to those who are convicted of criminal activity. Some now argue that the scope for deportation should be widened even further.
Adding to the distress is the case of a government letter, sent by Home Office, to a Romanian national in October 2017. It advised him to consider leaving the UK to ‘avoid becoming destitute’, after he was denied emergency accommodation. The UK authorities’ refusal to provide him with emergency accommodation should not, on its own, amount to him being asked to leave – especially not under EU law. By suggesting that he leave, it appears that the Home Office was trying to restrict his freedom to move and reside. This letter has added to the already hostile political atmosphere on migration in the UK, and does nothing to allay the concerns of worried EU citizens.
EU Law on Deportation of EU Citizens
The law on deporting EU citizens in the territory of other EU Member States is based on Article 28 of Citizens’ Directive (2004/38/EC). This states that EU citizens can only be deported from another Member State for reasons of public policy or public security. Specifically, there are three areas of consideration in determining whether deportation is allowed.
The first concerns EU citizens’ generally, and requires that, alongside the public policy or public security reasons, adequate consideration is given to other important relevant factors. These include how long a person has been living in the country, their age, health, family and financial situation, and how well they have integrated into society.
The second concerns permanent residents – those who have lived in a Member State for five years or more (documentation proving this is not necessary, though it is required for British citizenship applications). For permanent residents, only ‘serious grounds’ of public policy or public security can justify expulsion. These grounds must be set out, but the directive does not provide specific guidelines, beyond that they must relate to a fundamental interest of society, including preventing unlawful immigration, maintaining public order, preventing tax evasion, countering terrorism and preventing repeat criminal offences.
The third concerns those who have lived in a Member State for the last ten years – or minors. In these cases, only ‘imperative grounds’ of public policy or public security will be accepted. The determination of imperative grounds is also for the Member States to justify, and the directive offers no definition. However, it is clear that they are stricter than ‘serious grounds’. Therefore, longer residence increases the threshold to be met for deportation. Case law has stated, for instance, that involvement in drug dealing is an imperative ground of public security, but the general definition of ‘imperative’ remains unclear.
Despite the fairly high level of protection under these provisions, the UK has been known to interpret public policy and public security grounds for deportation quite broadly, in some cases arguing that rough sleeping counts. This policy was successfully challenged before the High Court, though it may be too little, too late. The EU has also not taken kindly to this behaviour. The European Commission is currently investigating whether the UK is targeting EU nationals – if so, the UK would be in breach of its obligations as an EU Member State.
European Convention on Human Rights
In its letter to the Romanian national mentioned previously, the Home Office suggested he leave so as to ‘enjoy access to all your ECHR [European Convention on Human Rights] without interference’. But this seems a strange suggestion, given that the UK is also bound by the ECHR and the government stated earlier this year that are ‘no plans to withdraw’ from it after Brexit. The UK Government should therefore also be committed to conferring such rights without interference.
Article 8 of the ECHR protects the right to private and family life, and deportation has previously been deemed an interference to this right. The Home Office’s suggestion that EU citizens should go elsewhere to seek better protection makes it appears as if the UK wants allegedly burdensome EU citizens to leave, regardless of EU law or the ECHR.
EU law sets high thresholds to protect EU citizens from deportation, and ECHR rights also play a role. Yet, the Home Office seems to want to downplay its obligations both under EU law and under the ECHR. The UK Government’s attempts to shirk its responsibilities, even before Brexit has occurred, do not set a positive tone for the protection of EU citizens’ rights going forward.
An earlier version of this article was published on The Conversation.
City, University of London
Dr Adrienne Yong is Lecturer in Law in the Institute for the Study of European Laws at City, University of London. Her research interests focus on European human rights and EU citizenship, and her current work considers the effect of Brexit on the human rights protection of EU citizens.
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