Leandro Mancano
LERU Brexit Seminar
Over recent years, foreign nationals in the United Kingdom subject to criminal investigations – let alone convictions – have increasingly experienced an (un)happy ending to their residence in Britain. The aftermath of the 2005 London terrorist attacks resulted in a toughening up of relevant rules concerning the protection of foreigners living in the UK. These developments have been inextricably linked to a reconsideration of how non-UK people belong in the country. In an inspiring analysis, Lucia Zedner has linked legislative actions taken by the UK Parliament to the construction of a model of probationary citizenship, where foreigners and their rights – but also for UK nationals as well – are perpetually on trial, with their legal protections highly dependent on their level of loyalty to the law.
UK Home Office (Marsham Street, London), Steve Cadman, CC-BY-SA-2.0
In this context, even the mere allegation of involvement in criminal activities can give rise to significant consequences for foreign nationals, the most serious of which is deportation to their country of nationality, whether within or outside the European Union. Some third-country nationals subject to expulsion measures have full custody of children who are EU citizens, which makes the picture even more complex. This is the factual background of C.S., the case that inspired this article and brought the Immigration Chamber of the Upper Tribunal to ask the EU Court of Justice (CJEU) for a preliminary ruling. It showcases perfectly the complexity and multi-layered nature of the UK’s legal framework concerning criminal activities, expulsion and citizenship. This article focuses on the British system of deportation as a consequence of criminal activity and its relationship with (EU) citizenship.
Legal Framework of EU Citizenship
Though the introduction and development of EU citizenship has granted substantive rights to individuals over the years, its very core lies in the right, for every Union citizen, to move and reside freely within the EU regardless of their nationality, and without requiring links to undertaking economic activity. Such a ‘formula’ rests on two main foundations: the principle of non-discrimination on grounds of nationality (a link established by the Court of Justice and currently codified in Articles 18, 20 and 21 TFEU) and residence security (the unconditional right to enter and stay in the territory of a polity). The Citizenship Directive (2004/38/EC) reflects this logic. With the aim of promoting social cohesion and integration among Union citizens, the directive provides citizens with the right to permanent residence after legally residing for a continuous period of five years in a host Member State. On the other hand, the directive includes protection against expulsion, stating that any restrictive measure must be based on an individual assessment that a person’s conduct is a serious threat to one of the fundamental interests of society.
Article 28(2) of the directive stipulates that Union citizens (or family members) who have the right of permanent residence in the host Member State may still be subject to an expulsion measure, as long as there are serious grounds of public policy or public security. However, Article 28(3)(a) precludes the expulsion of Union citizens who have resided in the host Member State for the previous ten years, unless the state can justify imperative grounds of public security – and therefore limited to exceptional circumstances. Member States are entitled to set their own definition of ‘public security’ for the purposes of an expulsion decision. In any case, where EU citizenship intersects national rules, the latter remain subject to primary and secondary EU law, as interpreted by the CJEU.
Three main principles can be drawn from the Citizenship Directive. First, the law should be a means of achieving integration as a right, instead of setting it out as a privilege. Second, coercive measures cannot be triggered solely by having a criminal record and instead require a case-by-case assessment of the seriousness of the threat posed by the person concerned. Third, EU law conveys the idea that the denial of citizenship rights without concrete evidence is not acceptable.
UK Legal Framework on Deportation
Three main UK legislative instruments are relevant to the present discussion: the Immigration Act 1971 (IA), UK Borders Act 2007 (UKBA) and the Immigration (European Economic Area) Regulations 2006. In the UK, deportation is a statutory power of the Home Secretary which is applicable to aliens in particular circumstances defined by statute: mainly the IA and the UKBA. The IA can be considered to be the centre of gravity of UK immigration law. In a similar vein to the Citizenship Directive, the right of abode plays a key role for the rights of foreigners in the UK. Indeed, people entitled to that right are free to live in the UK, unless one of the exceptions laid down in the act applies. According to Section 3(5)(a), the Secretary of State can adopt a deportation measure if she/he deems it conducive to the public good. The same act also provides for the adoption of coercive measures in case of criminal convictions. However, the effective margin of application was considerably reduced by the UKBA.
The UKBA introduced the category of ‘foreign criminal’. The Secretary of State must make a deportation order in respect of a foreign criminal – namely, anyone who is (1) not a British citizen, (2) convicted in the UK of an offence to a period of imprisonment of at least 12 months, (3) the offence is specified by order of the Secretary of State under the Nationality, Immigration and Asylum Act 2002 and (4) the person is sentenced to a period of imprisonment. Where these conditions are met, deportation is presumed to be conducive to the public good. The act also provides for exceptions to this presumption, including no automatic deportation where it would breach a person’s rights under the European Convention of Human Rights, of rights of the foreign criminal under the EU treaties.
The Immigration (European Economic Area) Regulations 2016 transposes Chapter VI of the Citizenship Directive, concerning the restriction of citizenship rights on grounds of public policy and public security. In addition to the principles stated in the Citizenship Directive, the regulations say that a deportation decision ‘may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person’. Before taking a relevant decision, considerations must be made for age, state of health, family situation, economic situation, length of residence in the UK, social and cultural integration into the UK and extent of links with the country of origin.
Expulsion from an EU Member State with Minor Union Citizens
C.S. involved the possible expulsion from the Union of a third-country national who has full custody of minor Union citizens. As explained, UK law provides for the automatic adoption of an expulsion measure against third-country nationals convicted of certain criminal offences. In C.S., the children would have been subject to expulsion as well, as they were not autonomous. The CJEU found that the expulsion would be in compliance with EU law, if the national court considered that the individual was a present and real threat to the country, giving rise to grounds of public security.
To this end, public security must be understood consistently with the CJEU case law (covering terrorism, drug trafficking, sexual exploitation of children). Articles 27-28 of the Citizenship Directive make clear that the personal conduct of the individual concerned must represent a genuine and present threat affecting one of the fundamental interests of society or of the Member State concerned. An expulsion measure in such a situation must be based on a specific assessment by the national court of all the current and relevant circumstances of the case, in the light of the principle of proportionality, the child’s best interests (in this case) and the fundamental rights whose observance the court ensures. The UK court ruling gave some interesting insight into the relationship between citizenship rights and coercive measures as a consequence of criminal convictions in the UK.
UK Policy Approach on Immigration
The policy documents published by the Home Office play an important role here, mainly the Immigration Rules (IR) and internal guidance for decision makers. Over the years, the reach of the IR has grown significantly. While these rules and relevant amendments are subject to some form of parliamentary control, and UK judges have called for a systematic and purposive interpretation of them, their legal nature and force are debated. The shared and accepted idea is that they are not legislation, but rather instruments stating the policy of the executive. However, under the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the Immigration Rules. The uncertain legal regime of the IR has resulted in concerns about its democratic legitimacy.
Equally interesting and controversial are the internal guidelines for decision makers included in the Modernised Guidance (MG). This guidance cannot fetter the rights provided for by legislation or the Immigration Rules. For purposes of the present discussion, it is also important to note the visa and immigration operational guidance, particularly on EEA decisions on grounds of public policy and public security. This guidance, last amended in 2016, elaborates on the principles and provisions set out in the EEA Regulation. Broadly, its logic is based on the assumption that Member States have considerable discretion to define their own standards of public policy and public security.
The current UK interpretation is that the principle of proportionality requires a related measure to be necessary and appropriate to protect the fundamental interests of society that are threatened. To this end, a threat must be realistic, but it does not need to be imminent. Likewise, it is not necessary to demonstrate that an individual is likely to commit a specific type of offence, or even that a criminal conviction has been delivered. Other circumstances can also be taken into account, such as the existence of cautions and warnings. A low risk can therefore constitute a present threat, especially where the consequences of any offence could be serious. The threat must be serious enough to affect one of the fundamental interests of society, but does not need to be a serious threat.
This guidance seems to worryingly lower the threshold to claim the presence of a threat. Moreover, the definition of a ‘fundamental interest of society’ is also a cause for concern. While the instructions include reasonable references such as the need to counter terrorism and extremism and to prevent tax and customs evasion, they also include much more debatable grounds, such as ‘maintaining public order’, ‘preventing social harm’, ‘combating the effects of persistent offending’ or ‘protecting the public’. These objectives are very broadly worded to start with, but some of the specific examples of behaviour listed – such as persistent shoplifting and rough sleeping – are low-level criminality that could hardly constitute a ‘threat to the fundamental interests of society’.
UK Divergence from EU Law on Crime and Citizenship Rights
The legal background presented above raises several concerns. One thorny issue regards the relationship between different sources of law: between different legislative acts and between legislation and policy documents. We see that, according to the IA, the Secretary of State enjoys a margin of discretion in adopting a deportation measure, depending on whether the latter would be conducive to the public good. The UKBA removes such discretion by establishing the presumption that, in cases of a foreign criminal, expulsion is always conducive to the public good. Nevertheless, where one of the UKBA’s exceptions applies, it is assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good. On the exception for a foreign national’s EU rights, there is no duty for the Secretary of State to make a removal decision, but she/he also retains discretion to adopt such a decision under Section 5(1) IA. The likelihood of such an order being made, which would effectively breach EU law, is debatable.
The three immigration instruments (the IA, UKBA and EEA Regulations) create a sort of legal conundrum. The Citizenship Directive is reluctant to create any automatism between criminal offences and coercive measures. Even if we assume that the EU exception removes the presumption of deportation established by the UKBA, so reintroducing the discretionary element enjoyed by the Secretary of State under the IA, the following issue remains. The IA enables the Secretary of State to make a removal decision when this is conducive to the public good – this threshold is clearly much lower than that established by the Citizenship Directive and the EEA Regulations, which require ‘serious’ or ‘imperative grounds of public security.’ A possible interpretation is that the EEA Regulations constitute lex specialis to the IA, so that the discretion granted to the Secretary of State must be exercised within the limits laid down in EU citizenship law.
Another problem concerns the relationship between policy instructions and legislation. Even though not legally binding, policy documents are indeed relied on by decision makers when it comes to adopting removal measures, and they express a direction of travel as far as the relationship between crime and citizenship are concerned. They flesh out details of the statutes and statutory instruments referenced above. Present UK policy guidance produces a sharp contrast between EU citizenship law and the current UK approach.
EU law creates a (flexible) triangle between criminal conviction, the notion of threat and the fundamental interests of society. As confirmed in the CJEU’s case law, it seems difficult to envisage a present and actual threat in the absence of criminal behaviour and criminal convictions. In the UK approach, this triangle is broken. First, the EEA Regulations get rid of the criminal conviction requirement, also allowing removal on preventative grounds. Second, the other two sides of the triangle are significantly stretched – there is no requirement for the threat to be imminent, or likely, or even serious. The UK redefinition of what constitutes a ‘threat’ has to be jointly read with that of ‘the fundamental interests of society’. In this regard, the combination of vague definitions of public interests and much less serious behaviour than intended is a cause for concern.
The trend emerging from the UK approach to the relationship between crime and citizenship is a shifting of the burden of proof when it comes to coercive measures and rights restriction. As a rule (confirmed in case law), it is for the state to demonstrate the need for such a measure – in the UK, that burden is being redefined between the state and the person concerned. The onus is now on the individual to provide evidence of her/his ‘genuine’ contribution to society in order to prevent her/his rights from being restricted.
In analysing the UK’s legal and policy approach to criminal activity and expulsion of EU citizens, this article has not focused on the impact of Brexit. Apart from being difficult to predict, it is clear that law and policy as they stand in the UK already raise concerns about the protection of EU citizens’ rights. The most striking issue in the UK’s current approach is its dissociation between removals and the presence of a criminal conviction. While not ironclad, the general rule in EU citizenship law is that expulsion measures need to be legally anchored in a finding of guilt – and then not all convictions allow for deportation, but only those that result in a serious, present and actual threat. Furthermore, EU law does not allow for presumptive mechanisms between any crime and rights restriction, but requires an individual assessment as referred to above.
The interaction between the UK law and policy in this area diverges from decades of EU law. For instance, the legal introduction of the category ‘foreign criminals’ seemed to conceptually ghettoise groups of people through unwelcome automatism. The legitimacy and lawfulness of expulsion measures mainly rest on two pillars: threat and public interest. These concepts are given substance by the policy approach of the UK government, which has stretched them to an extreme extent, making it extremely hard subject them to judicial review. Rough sleeping – the symbol of unwelcome persons residing in the UK and this understanding of deportation – is, as explained, not in and of itself sufficient grounds to deport an EU citizen. As negotiations between the UK and the EU on citizens’ right continue, the current state of the UK’s policy on the expulsion of EU nationals gives worryingly broad discretion to domestic authorities, prone to arbitrary exercises of power.
Leandro Mancano
University of Edinburgh
Dr Leandro Mancano is Lecturer in European Union Law at the University of Edinburgh. His research interests include EU constitutional law, EU fundamental rights law, Justice and Home Affairs policy and deprivation of liberty.
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