EN Official Journal of the European Union C 85/7

Judgment of the Court (Second Chamber) of 16 January 2014 (request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber), London (United Kingdom)) — Secretary of State for the Home Department v M.G.

(Case C-400/12) (1)

(Reference for a preliminary ruling - Directive 2004/38/EC - Article 28(3)(a) - Protection against expulsion - Method for calculating the 10-year period - Whether periods of imprisonment are to be taken into account)

2014/C 85/11

Language of the case: English

Referring court

Upper Tribunal (Immigration and Asylum Chamber), London

Parties to the main proceedings

Appellant: Secretary of State for the Home Department

Respondent: M.G.

Re:

Request for a preliminary ruling — Upper Tribunal (Immigration and Asylum Chamber), London — Interpretation of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Expulsion decision taken on serious grounds of public security in respect of a Union citizen who had resided in the host Member State for the previous 10 years and who had been sentenced to a period of imprisonment — Notion of a 10-year period of residence in the territory of the host Member State — Whether a period of imprisonment may be taken into account — Whether length of stay must be calculated by counting forward from beginning of stay or by counting back from the expulsion decision — Impact, in the latter case, of a previous period of imprisonment.

Operative part of the judgment

1. On a proper construction of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, the 10-year period of residence referred to in that provision must, in principle, be continuous and must be calculated by counting back from the date of the decision ordering the expulsion of the person concerned.

2. Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host Member State for the 10 years prior to imprisonment. However, the fact that that person resided in the host Member State for the 10 years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host Member State have been broken.

(1) OJ C 331, 27.10.2012