Case C‑304/14

Secretary of State for the Home Department

v

CS

(Request for a preliminary ruling

from the Upper Tribunal (Immigration and Asylum Chamber))

‛Reference for a preliminary ruling — Citizenship of the Union — Article 20 TFEU — Third-country national having a young dependent child who is a Union citizen — Right to reside in the Member State of which the child is a national — Criminal convictions of the child’s parent — Decision to expel the parent resulting in the indirect expulsion of the child concerned’

Summary — Judgment of the Court (Grand Chamber), 13 September 2016

Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Limitation on the right of entry and the right of residence on grounds of public policy or public security — Legislation of a Member State which requires a third-country national who has been convicted of a criminal offence to be expelled from the territory of that Member State to a third country, the third-country national being the primary carer of a young child who is a national of that Member State and has been residing in it since birth without having exercised his right of freedom of movement — Measure expelling the third-country national which requires the child to leave the territory of the European Union — Unlawfulness — Limits — Adoption of an expulsion measure founded on the personal conduct of the third-country national — Lawfulness — Conditions — Verification a matter for the national court

(Art. 20 TFEU; Charter of Fundamental Rights of the European Union, Arts 7 and 24(2))

Article 20 TFEU must be interpreted as precluding legislation of a Member State which requires a third-country national who has been convicted of a criminal offence to be expelled from the territory of that State to a third country notwithstanding the fact that that national is the primary carer of a young child who is a national of that Member State, in which he has been residing since birth without having exercised his right of freedom of movement, when the expulsion of the person concerned would require the child to leave the territory of the European Union, thereby depriving him of the genuine enjoyment of the substance of his rights as a Union citizen. However, in exceptional circumstances a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of that third-country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matters which are for the national court to determine.

Although Article 20 TFEU does not affect the possibility of Member States relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security, since the situation of that third-country national falls within the scope of EU law assessment of that situation must take account of the right to respect for private and family life, as laid down in Article 7 of the Charter of Fundamental Rights of the European Union, an article which must be read in conjunction with the obligation to take into consideration the child’s best interests, recognised in Article 24(2) of the Charter. Furthermore, as a justification for derogating from the right of residence of Union citizens or members of their families, the concepts of ‘public policy’ and ‘public security’ must be interpreted strictly, so that their scope cannot be determined unilaterally by the Member States without being subject to control by the EU institutions.

The concept of ‘public policy’ presupposes, in any event, the existence, in addition to the disturbance of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The concept of ‘public security’ covers both the internal security of a Member State and its external security; consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security. Furthermore, the fight against crime in connection with drug trafficking as part of an organised group or against terrorism is included within the concept of ‘public security’. In this context, where the expulsion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of the criminal offences committed by a third-country national who is the sole carer of children who are Union citizens, that decision could be consistent with EU law.

On the other hand, that conclusion cannot be drawn automatically on the basis solely of the criminal record of the person concerned. It can result, where appropriate, only from 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, of the child’s best interests and of the fundamental rights whose observance the Court ensures. That assessment must therefore take account in particular of the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the child at issue and his state of health, as well as his economic and family situation.

It is incumbent upon the national court to assess (i) the extent to which the criminal conduct of the third-country national at issue is a danger to society and (ii) any consequences which such conduct might have for the requirements of public policy or public security of the Member State concerned. In carrying out the balancing exercise required of it, the national court has also to take account of the fundamental rights whose observance the Court ensures, in particular the right to respect for private and family life, as laid down in Article 7 of the Charter. In the present instance, account is to be taken of the child’s best interests when weighing up the interests involved. Particular attention must be paid to his age, his situation in the Member State concerned and the extent to which he is dependent on the parent.

(see paras 36-42, 47-50, operative part)