B v Land Baden-Württemberg and Secretary of State for the Home Department v Franco Vomero.
Date: 2018-04-17
37


If this is not the case, the referring court also observes that the 10-year period preceding the expulsion decision referred to in Article 28(3)(a) of Directive 2004/38 is, according to the Court’s case-law, only ‘in principle’ continuous (judgment of 16 January 2014, G., C‑400/12, EU:C:2014:9, paragraph 34). Thus, it notes that this period might also be non-continuous where, for example, it is interrupted by a period of absence from the territory or imprisonment. In those circumstances, the manner in which the 10-year period mentioned in that provision is to be calculated, and in particular whether or not such periods of absence from the territory or imprisonment should be included, remains unclear.
38


As regards the fact that the integrative link with the host Member State must be the subject of an overall assessment in order to determine, in that context, whether that link exists or whether it has been broken (judgment of 16 January 2014, G., C‑400/12, EU:C:2014:9, paragraphs 36 and 37), the referring court considers that the scope of that assessment and its effects are not yet sufficiently clear. That court is unsure, in particular, of the factors that may need to be examined in order to determine whether, at the time the expulsion decision was adopted in 2007, Mr Vomero’s integrative links with the United Kingdom were such as to entitle him to enhanced protection on the basis of his residence in that Member State for the previous 10 years.
42


Since the Court does not have all the information necessary in order to assess the merits of that premiss, it must be assumed, for the purposes of the question, that it is well founded.
44


That is why Directive 2004/38, as is apparent from recital 24 in the preamble, establishes a system of protection against expulsion measures which is based on the degree of integration of those persons in the host Member State, so that the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the guarantees against expulsion they enjoy (see, to that effect, judgments of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 25, and of 8 December 2011, Ziebell, C‑371/08, EU:C:2011:809, paragraph 70).
45


In that context, first of all, Article 28(1) of Directive 2004/38 provides generally that, before taking an expulsion decision ‘on grounds of public policy or public security’, the host Member State must take account in particular of considerations such as how long the individual concerned has resided on its territory, his or her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his or her links with the country of origin (judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 26).
47


Lastly, in the case of Union citizens who have resided in the host Member State for the previous 10 years, Article 28(3)(a) of Directive 2004/38 considerably strengthens their protection against expulsion by providing that such a measure may not be taken except where the decision is based on ‘imperative grounds of public security, as defined by Member States’ (judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 28).
51


In the first place, it should be noted that Directive 2004/38 introduced a gradual system as regards the right of residence in the host Member State, which reproduces, in essence, the stages and conditions set out in the various instruments of European Union law and case-law preceding that directive and culminates in the right of permanent residence (judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 38).
52


First, for periods of residence of up to three months, Article 6 of Directive 2004/38 limits the conditions and formalities of the right of residence to the requirement to hold a valid identity card or passport and, under Article 14(1) of the directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State (judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 39).
53


Secondly, for periods of residence longer than three months, the right of residence is subject to the conditions set out in Article 7(1) of Directive 2004/38 and, under Article 14(2) thereof, that right is retained only if the Union citizen and his family members satisfy those conditions. It is apparent from recital 10 in the preamble to the directive in particular that those conditions are intended, inter alia, to prevent such persons from becoming an unreasonable burden on the social assistance system of the host Member State (judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 40).
54


Thirdly, it follows from Article 16(1) of Directive 2004/38 that Union citizens acquire the right of permanent residence after residing legally for a continuous period of five years in the host Member State and that that right is not subject to the conditions referred to in the preceding paragraph. As stated in recital 18 in the preamble to the directive, once obtained, the right of permanent residence should not be subject to any further conditions, with the aim of it being a genuine vehicle for integration into the society of that State (judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 41).
56


As the Advocate General pointed out in points 57 and 58 of his Opinion, a Union citizen who, because he does not have a right of permanent residence, may be expelled if he becomes such an unreasonable burden, cannot, at the same time, enjoy the considerably enhanced protection provided for in Article 28(3)(a) of that directive, pursuant to which his expulsion could be authorised only on ‘imperative grounds’ of public security, which relate to ‘exceptional circumstances’, as indicated in recital 24 of that directive (see, to that effect, judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 40).
57


In the second place, it must also be noted that, as recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship. The EU legislature accordingly made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State (judgment of 16 January 2014, Onuekwere, C‑378/12, EU:C:2014:13, paragraph 24 and the case-law cited).
58


As the Court has already held, integration, which is a precondition of the acquisition of the right of permanent residence laid down in Article 16(1) of Directive 2004/38, is based not only on territorial and temporal factors but also on qualitative elements, relating to the level of integration in the host Member State (judgment of 16 January 2014, Onuekwere, C‑378/12, EU:C:2014:13, paragraph 25 and the case-law cited).
59


It follows that the concept of ‘legal residence’ implied by the terms ‘have resided legally’ in Article 16(1) of Directive 2004/38 should be construed as meaning a period of residence which complies with the conditions laid down in the directive, in particular those set out in Article 7(1) (judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 46).
61


In the light of all the foregoing, the answer to the first question in Case C‑424/16 is that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that it is a prerequisite of eligibility for the protection against expulsion provided for in that provision that the person concerned must have a right of permanent residence within the meaning of Article 16 and Article 28(2) of that directive.
64


In that respect, it must be noted, in the first place, that while it is true that recitals 23 and 24 in the preamble to Directive 2004/38 refer to special protection for persons who are genuinely integrated into the host Member State, especially if they were born there and have spent all their life there, the fact remains that the decisive criterion for the grant of the enhanced protection provided for in Article 28(3)(a) of Directive 2004/38 is whether the Union citizen with a right of permanent residence in the host Member State, within the meaning of Article 16 and Article 28(2) of that directive, has, as required by Article 28(3), resided in that Member State for the 10 years preceding the expulsion decision (see, to that effect, judgments of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 31, and of 16 January 2014, G., C‑400/12, EU:C:2014:9, paragraph 23).
65


It follows, in particular, that the 10-year period of residence necessary for the grant of the enhanced protection provided for in Article 28(3)(a) of Directive 2004/38 must be calculated by counting back from the date of the decision ordering that person’s expulsion (judgment of 16 January 2014, G., C‑400/12, EU:C:2014:9, paragraph 24).
66


In the second place, it follows from the case-law of the Court that the 10-year period of residence must, in principle, be continuous (see, to that effect, judgment of 16 January 2014, G., C‑400/12, EU:C:2014:9, paragraph 27).
67


In that respect, it must also be noted, however, that while Article 28(3)(a) of Directive 2004/38 makes the enjoyment of the enhanced protection against expulsion provided for in that provision subject to the person’s presence in the Member State concerned for 10 years preceding the expulsion measure, it is silent as to the circumstances which are capable of interrupting the period of 10 years’ residence for the purposes of the acquisition of the right to that enhanced protection (judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 29).
68


Thus, the Court has held that, as regards the question of the extent to which absences from the host Member State during the period referred to in Article 28(3)(a) of Directive 2004/38 prevent the person concerned from enjoying that enhanced protection, an overall assessment must be made of the person’s situation on each occasion at the precise time when the question of expulsion arises (judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 32).
69


In doing so, the national authorities responsible for applying Article 28(3) of Directive 2004/38 are required to take all the relevant factors into consideration in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State. It must be ascertained whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned (see, to that effect, judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 33).
70


As to whether periods of imprisonment may, by themselves and irrespective of periods of absence from the host Member State, also lead, where appropriate, to a severing of the link with that State and to the discontinuity of the period of residence in that State, the Court has held that although, in principle, such periods of imprisonment interrupt the continuity of the period of residence, for the purpose of Article 28(3)(a) of Directive 2004/38, it is nevertheless necessary — in order to determine whether those periods of imprisonment have broken the integrative links previously forged with the host Member State with the result that the person concerned is no longer entitled to the enhanced protection provided for in that provision — to carry out an overall assessment of the situation of that person at the precise time when the question of expulsion arises. In the context of that overall assessment, periods of imprisonment must be taken into consideration together with all the relevant factors in each individual case, including, as the case may be, the circumstance that the person concerned resided in the host Member State for the 10 years preceding his imprisonment (see, to that effect, judgment of 16 January 2014, G., C‑400/12, EU:C:2014:9, paragraphs 33 to 38).
75


On that last point, it should also be borne in mind that, as the Court has already pointed out, the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated is not only in his interest but also in that of the European Union in general (judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 50).
92


It must be borne in mind, in particular, that under the second subparagraph of Article 27(2) of Directive 2004/38, the issue of any expulsion measure is, in general, conditional on the requirement that the conduct of the person concerned must represent a genuine, present threat affecting one of the fundamental interests of society or of the host Member State (see, to that effect, judgments of 22 May 2012, I, C‑348/09, EU:C:2012:300, paragraph 30, and of 13 July 2017, E, C‑193/16, EU:C:2017:542, paragraph 23).
93


It should also be noted that where an expulsion measure has been adopted as a penalty or legal consequence of a custodial penalty, but is enforced more than two years after it was adopted, Article 33(2) of Directive 2004/38 expressly requires the Member State to check that the individual concerned is currently and genuinely a threat to public policy or public security and to assess whether there has been any material change in the circumstances since the expulsion order was issued (judgment of 22 May 2012, I, C‑348/09, EU:C:2012:300, paragraph 31).
94


Furthermore, it follows, more generally, from the case-law of the Court that the national courts must take into consideration, in reviewing the lawfulness of an expulsion measure taken against a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy or public security. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court (see, by analogy, judgments of 29 April 2004, Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, EU:C:2004:262, paragraph 82, and of 8 December 2011, Ziebell, C‑371/08, EU:C:2011:809, paragraph 84).