Secretary of State for the Home Department v CS.
Date: 2016-09-13
22


It follows that Directive 2004/38 is not applicable to a situation such as that at issue in the main proceedings, as the Union citizen concerned has never made use of his right of freedom of movement and has always resided in the Member State of which he is a national (see judgment of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 39). In so far as a Union citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, a member of his family is not covered by that concept either, given that the rights conferred by that directive on the family members of a beneficiary of the directive are not autonomous rights of those family members, but derived rights, acquired through their status as members of the beneficiary’s family (see judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 42; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 55; and of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 31).
23


So far as concerns, secondly, Article 20 TFEU, the Court has already had occasion to hold that the situation of a Union citizen who, like CS’s child of British nationality, has not made use of the right of freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation, that is to say, a situation which has no factor linking it with any of the situations governed by EU law (see judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 46; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 61; and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 43).
24


CS’s child, as a national of a Member State, enjoys, under Article 20(1) TFEU, the status of Union citizen, which is intended to be the fundamental status of nationals of the Member States, and may therefore rely on the rights pertaining to that status, including against the Member State of which he is a national (see judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 48; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 63; and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 44).
25


Citizenship of the Union confers on each Union citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaty and the measures adopted for their implementation (see, to this effect, judgments of 7 October 2010, Lassal, C‑162/09, EU:C:2010:592, paragraph 29, and of 16 October 2012, Hungary v Slovakia, C‑364/10, EU:C:2012:630, paragraph 43).
27


On the other hand, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals (judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 66, and of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 34).
28


Any rights conferred on third-country nationals by the Treaty provisions on citizenship of the Union are not autonomous rights of those nationals but rights derived from those enjoyed by the Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with the Union citizen’s freedom of movement (judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraphs 67 and 68, and of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 35).
29


In this connection, the Court has already held that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of his since the effectiveness of citizenship of the Union would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus denying him the genuine enjoyment of the substance of the rights conferred by virtue of his status (see, to this effect, judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraphs 43 and 44; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraphs 66 and 67; of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 71; of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 36; and of 10 October 2013, Alokpa and Moudoulou, C‑86/12, EU:C:2013:645, paragraph 32).
30


The above situations have the common feature that, although they are governed by legislation which falls, a priori, within the competence of the Member States, namely legislation on the right of entry and residence of third-country nationals outside the scope of provisions of secondary legislation which provide for the grant of such a right under certain conditions, they nonetheless have an intrinsic connection with the freedom of movement and residence of a Union citizen, which prevents the right of entry and residence being refused to those nationals in the Member State of residence of that citizen, in order not to interfere with that freedom (see, to this effect, judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 72, and of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 37).
36


It should be pointed out that 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. However, since CS’s situation falls within the scope of EU law, assessment of her 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 (‘the Charter’), 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 (see, to this effect, judgment of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraphs 53 and 54).
37


Furthermore, it should be borne in mind that, 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 (see, to this effect, judgments of 4 December 1974, van Duyn, 41/74, EU:C:1974:133, paragraph 18; of 27 October 1977, Bouchereau, 30/77, EU:C:1977:172, paragraph 33; of 29 April 2004, Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, EU:C:2004:262, paragraphs 64 and 65; of 27 April 2006, Commission v Germany, C‑441/02, EU:C:2006:253, paragraph 34; and of 7 June 2007, Commission v Netherlands, C‑50/06, EU:C:2007:325, paragraph 42).
38


The Court has thus held that 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.
39


As regards ‘public security’, it is apparent from the Court’s case-law that this concept covers both the internal security of a Member State and its external security and that, 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 (see, to this effect, judgments of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraphs 43 and 44, and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraphs 65 and 66). The Court has also held that the fight against crime in connection with drug trafficking as part of an organised group (see, to this effect, judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraphs 45 and 46) or against terrorism (see, to this effect, judgment of 26 November 2002, Oteiza Olazabal, C‑100/01, EU:C:2002:712, paragraphs 12 and 35) is included within the concept of ‘public security’.
40


In this context, it must be held that, 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.
41


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.
48


In carrying out the balancing exercise required of it, the referring 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 (see, to this effect, judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 52), and to ensure that the principle of proportionality is observed.