[Music] all right this video is addressed to cover the situation of people who do not have a right of entry a residence in another member state I look at not derive rights from EU law in this in this perspective basically starting with half point everybody who falls outside the scope of the directive so their country nationals who are not family members for example or people who do not make use of their right to move from one member state to the next except from very very rare exceptions that I will deal with in a separate video but the main focus of this video will be how can those who have a right to move those EU citizens or their family members who have a right to move how can they lose it so how can they lose their right to reside in another member state or their right to exit or enter another member state and dealing with this subject you have to keep in mind that you are dealing with a situation that is inherently directly discriminatory because member states cannot block entry or residence of their own Nationals so that means that the Nationals of a member state always have a right to go to that member state to enter into that member states and to reside in that member state I mean we we are way beyond the Middle Ages so banishment isn't a punishment we use anymore so that means that every measure that you take that limits the right of somebody with another nationality it updated an EU citizen or a remember who can derive rights from an EU citizen if you if you encroach on these rights given by the EU rules then you are doing something as a Member State that is inherently directly discriminatory with regards to directly discriminatory restrictions we said early on in one of the first videos that they can only be justified on the basis of the treaty so that means that justification grants must be found in a treaty well looking around in the treaty you will see that in the area regarding citizenship articles 2021 you will not find any exceptions you will find exceptions when it comes to workers establishment and services and the grounds that you will find in those articles in the treaty in those freedoms is restrictions on the grounds of public policy public security public health and also the so-called public service exceptions that I will deal with in a different video and there are different subheading of free movement of persons when we deal with equal treatment what we're focusing on here today is limiting on the grounds of public policy public security public health also here directive 2004 38 comes into play so the directive has codified these situations that means that or operationalized these situations that means that you are using the exceptions of the treaty by means of the mechanism laid down in the directive so you have to look at the directive to see how these rights can be limited and that is covered in Chapter six of the directive and chapter six is basically that the remnants of an old directive directive 64 two to one and a whole bunch of case law on the basis of that directive that has been codified in in this particular part there is a couple of elements that you need to know first of all the main rule on limiting rights that people have under the directive is laid down in article 27 of the direct an article 27 of the directive says that there shall be no limitations for economic ends and that limitation can basically only take place on the grounds of public policy public security when it comes to article 27 there is a special article devoted to public health that is article 29 these limitations should fulfill a material test that is laid down in the second subsection of article 27 and the second subsection of article 27 and I'll read it out in order to be sure that that that I cover everything it says measures on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned previous criminal convictions shall not in themselves constitute a ground for taking such measures and the personal conduct of the individual concerned must represent a genuine present and sufficiently serious threat affecting one of the fundamental interests of society justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted there's a couple of things there it must be personal conduct so it must be conduct belonging to a certain group or having certain political affiliations is not enough it must be personal conduct previous criminal convictions in themselves shall not constitute the grounds for taking such measures so the fact that somebody has a criminal record it's not enough to have to have somebody's rights limited what you are looking for is conduct that represents a genuine present and sufficiently serious threat affecting one of the fundamental interests of society that sounds like a very heart condition to fulfill it needs to be said that member states do have some discretionary power here to decide what falls under that under that definition it's important that it is personal conduct that it is not come there is not a matter purely based on previous behavior the article further states that measures of general prevention so basically setting an example is not a reason to take these types of measures if that condition has been fulfilled then indeed the member state can take limiting measures and these limiting measures can for example be that you are not allowed to leave your own member states there is case law mostly from Bulgaria that covers situations where the Bulgarian government in this case would be allowed to keep Bulgarian citizens in Bulgaria so basically to deny them the rights for article 4 of the directive the right to exit your own Member State and the court found in three separate cases that you are allowed to limit free movement in this case if somebody is a suspect in a criminal case so for the purposes of that criminal case you want that person to be in your in your member state for the purposes of a tax audit so if somebody is subject of a tax audit then you are allowed to keep that person in your member state but you are not allowed to do that if somebody is involved in a civil dispute and the other party in that dispute seeks to keep that person in that particular Member State the court there said well that's not a reason to to to deny somebody's free movement rights what is a further importance there is what happens if the measure take and it's not the whole Member State leaving but it is the host member states taking a measure that goes beyond denying somebody access on the basis of article 5 of the directive but that would go to denying a person residence and actually actively making sure that that person leaves that particular member state so when the measure amounts to expulsion if that is the case if a measure leads to expulsion so if you have somebody who has a right of residence and you want to take a measure on the basis of article 27 - of the directive and you want to expel that person that article 28 comes into play and article 28 says before taking an expulsion decision on the grounds of public policy or public security the host member states shall take account of considerations such as how long the individual concerned has resided on its territory age state health family and economic situation social and cultural integration into the host member state any extent of his/her links with the country of origin so you see that in addition to the material requirement there's a whole lot of other requirements that comes into play that the member state has to take into account in order to be able to take a valid expulsion decision and basically what all these things come down to is custom work so it's basically you look at an individual situation and on the basis of what article 28 once is you take a decision whether that person can actually actually be expelled yes or no taking into account those those elements what is also interesting is that article 28 subsection 2 and subsection 3 give the possibility for extra protection of the Union citizen or his or her family member based on the amount of time spent in the member state so if somebody has spent a longer amount of time in the Member State they will actually get more protection so in article 23 you see article 22 sorry first you see that if somebody has a permanent right of residence so if somebody has been there for at least five years and has acquired permanent residents of the directive you can only be expelled for serious grounds of public policy and public security so then there is an extra threshold it's not just public policy or public security but serious grounds and if you have been legally resident in the Member State for at least 10 years article 28 subsection 3 you can only or if you are a minor you can only be expelled for imperative grounds of public security [Music] two things there it's another threshold it goes from serious to imperative and it loses public policy so you are no longer allowed to expel on the basis of public policy but you have to expel on the basis of public security and that's complicated or that was complicated because in the case law before public policy and public security were always sort of twins they were always mentioned together and there was no case law on what one meant without the other and then all of a sudden because of article 23 which was not codification of all stuff but which was actually new to the directive the court had to come up with an explanation of what was public security as opposed to public policy and there is case law on that that shows that particular crime there's a case regarding a person who is in related to international drug trafficking and there's a case with with a person who has committed serious offenses against this stepdaughter where the Court finds that indeed these could be imperative grounds of public security [Music] the time limits so getting to getting to permanent residency or gets into ten years there you have to actually count to two those amount of years and in a separate video that also legs in with acquiring permanent residence I will explain how these time limits work when time counts and when time stops counting because there's a lot of case law on that that needs to be covered and that is important in this regard lastly you can also limit on the basis of public health that's article 29 and that basically only covers entry and the first three months period according to article 29 and only diseases that have a serious epidemic potential that are defined as such by the World Health Organization allow Member States to take measures in this field needless to say that is exceptionally rare okay so that answers the question who does not have a right to enter or reside in another member state so that's basically people where the Member State involved can take action under Chapter six of the director see you in the next video