EU Law and Right of Entry or Residence

Overview

• Focus on individuals who do not have a right of entry or residence in another EU member state.
• Addresses how EU citizens or their family members, who have a right to move, can lose that right.
• Emphasizes the inherently discriminatory nature of restricting these rights.

Discrimination and Justification

• Member states cannot block entry or residence of their own nationals.
• Any restriction on EU citizens’ rights is discriminatory.
• Justifications for restrictions must be found in the EU treaty.
• Articles regarding citizenship (20-21) have no exceptions.
• Exceptions are found in areas concerning workers, establishment, services:
  • Public policy
  • Public security
  • Public health
  • Public service exceptions (covered in a separate video).

Directive 2004/38/EC

• Codifies the limitations based on the treaty.
• Operationalizes the exceptions through mechanisms in the directive.
• Chapter 6 focuses on limitations of rights.

Article 27 - Limiting Rights

• No limitations for economic ends.
• Limitations are only on grounds of public policy and public security.
• Article 29: Special focus on public health.

Material Test (Second Subsection of Article 27)

• Must comply with the principle of proportionality.
• Based exclusively on the personal conduct of the individual.
• Previous criminal convictions alone are insufficient.
• Conduct must pose a genuine, present, and serious threat to society.
• General prevention is not a valid justification.

Discretionary Power

• Member states have discretion to define threats under this framework.
• Measures should not be based solely on group affiliations or past behaviors.

Case Law Examples

• Member states can limit rights if individuals are involved in criminal cases or tax audits.
• Civil disputes do not justify restriction of free movement.

Expulsion and Article 28

• Expulsion considerations include:
  • Length of residence
  • Age
  • Health
  • Family and economic situation
  • Social integration
  • Links to the country of origin.
• Custom approach required based on individual situations.

Extra Protection

• Longer residence offers more protection.
• Permanent residents (5+ years) need serious grounds for expulsion.
• Residents of 10+ years or minors need imperative grounds for expulsion.

Public Security vs. Public Policy

• New differentiation due to Article 23.
• Case law examples:
  • International drug trafficking
  • Serious offenses against family members.

Public Health Limitations (Article 29)

• Restricts entry and first three months.
• Focus on diseases with epidemic potential (defined by WHO).

Conclusion

• Restrictions under Chapter 6 of the directive apply to individuals without entry or residence rights.
• Further explanations on time limits and permanent residency will be covered in a separate video.