The Advocate General (AG) of the European Court of Justice has ruled that a non-EU national who is the sole carer of a minor EU national should not automatically be expelled from an EU Member State, or denied permission to reside, simply because of a criminal record.
The AG heard from a Colombian man, Rendón Marín, and a Moroccan woman, CS, both with dependent children who were nationals of various EU Member States. Mr. Marín lived in Spain with his Spanish born son and Polish born daughter, whilst CS lived with her British born son in the UK. Both were convicted of criminal offences and were at risk of being deported.
The AG looked at the Citizenship Directive, which applies to citizens of the EU and their family members moving to or residing in a Member State other than that of which they are nationals. As no borders were crossed by the sons of Mr. Marín or CS, the Directive did not apply to them. It was, however, engaged by Mr. Marín’s daughter.
The AG held that the right of residence granted by the Directive cannot be limited by a provision of national law which makes this right conditional on not having a criminal record. Similarly, it was contrary to Treaty on the Functioning of the European Union to automatically restrict or rescind the right of residence of a non-EU national parent who has sole care and control over a minor citizen of the EU, simply because of that parent having a criminal record. If the parties concerned were to be refused a residence permit, it is likely their dependent EU national children would also have to leave the territory of the EU. This would have the effect of preventing the children from exercising the many rights and entitlements conferred on them as citizens of the EU.
The AG considered public policy or national security concerns which may underscore the reasons Member States may use to deport certain residents, notwithstanding that this may affect minor EU citizens. Whilst removal of residents in these circumstances is ostensibly contrary to EU law, it may be permitted in exceptional circumstances provided it is proportionate, based exclusively on the conduct of the person concerned and for reasons relating to public security.
Click here to read the full Advocate General’s decision.