In January 2020 the Migration Law Clinic issued an expert opinion concerning a case in which the Dutch Council of State has referred preliminary questions on 25 September 2019. The case concerns a Polish national, who registered in the Netherlands on 9 November 2017. He worked in the Netherlands for five months. On 1 June 2018, the Dutch Immigration Service decided that the man had to leave the Netherlands, because he did not fulfil the requirements for stay in the Netherlands. The man had committed several crimes in the Netherlands (theft, pickpocketing, failure to show an ID, nuisance). The man left the Netherlands. He stayed with friends in Germany and committed a theft there on 23 October 2018. The man stated that he returned to the Netherlands on 21 November 2018. On 22 November he was arrested for shoplifting and was placed in aliens detention (return of migrants illegally staying).

The Council of State requested the Court of Justice EU (CJEU) to answer the following questions:

1.Does Art. 15 (1) of Directive 2004/38/EC (the Citizenship Directive) need to be explained as meaning that an EU citizen has complied with the decision, taken on the basis of this provision, to deport an EU citizen and that this decision does not have legal effect anymore, as soon as this citizen has left the territory of the host Member State within the lime-limit for voluntary return.

2.If question should be answered in the affirmative, does this Union citizen have the right to stay of max three months (art. 6(1) of the Directive) upon his direct return? Or can the host Member State take a new decision to deport the EU citizen in order to prevent that he enters the country continuously for short periods of time?

The expert opinion of the Migration Law Clinic first provides a history and overview of the fundamental right to free movement and the Directive in question in section. After that, it addresses the first preliminary question. It discusses the legal grounds for expulsion under EU law and highlights the differences between an expulsion order made under grounds of public policy, public security and public health, and one made on other grounds, as is relevant to this case. It also addresses the main argument of the Dutch state, according to which the obligation to ‘leave’ a Member State after a removal order would imply an obligation to settle in another Member State and acquire ‘genuine residence’ in that state, as pictured in the case of O and B. The expert opinion rejects this proposition and concludes that the first question should be answered in the affirmative.

Subsequently the expert opinion addresses the second preliminary question. Basically, the answer of this expert opinion is that all depends on what the Union citizen will do after his re-entry. This may vary on the one hand from effectively exerting the right to work, such that he will have legal residence ex lege, to on the other hand to constituting a genuine, present and sufficiently serious threat to public policy, such that that expulsion and even exclusion may be justified. The expert opinion also examines the circumstances in which residence under Article 6 of the Citizenship Directive might be restricted, with particular consideration to the ‘abuse of rights’ doctrine. It is concluded that Article 6 of the Directive cannot be abused, unless the Union citizen is artificially making use of free movement law to receive a benefit other than the right to reside.

In a judgment of 22 June 2021 the CJEU answered the preliminary questions of the CJEU. It considered:

“Article 15(1) 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/EEG, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a decision to expel a Union citizen from the territory of the host Member State, adopted on the basis of that provision, on the ground that that Union citizen no longer enjoys a temporary right of residence in that territory under that directive, cannot be deemed to have been complied with in full merely because that Union citizen has physically left that territory within the period prescribed by that decision for his or her voluntary departure. In order to enjoy a new right of residence under Article 6(1) of that directive in the same territory, a Union citizen who has been the subject of such an expulsion decision must not only have physically left the territory of the host Member State, but must also have genuinely and effectively terminated his or her residence there, with the result that, upon his or her return to that territory, his or her residence cannot be regarded as constituting in fact a continuation of his or her previous residence in that territory. It is for the referring court to verify whether that is the case, having regard to all the specific circumstances characterising the particular situation of the Union citizen concerned. If it follows from such a verification that the Union citizen has not genuinely and effectively terminated his or her temporary residence in the territory of the host Member State, that Member State is not obliged to adopt a new expulsion decision on the basis of the same facts which gave rise to the expulsion decision already taken against that Union citizen, but may rely on that latter decision in order to oblige him or her to leave its territory.”

The full text of the expert opinion of the Migration Law Clinic can be found here: Expert opinion MLC right to free movement Jan 2020 def