The Right to Free Movement of EU citizens: Leaving and Re-entering after an Expulsion Order

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.

The case is currently pending before the CJEU. The expert opinion will be published here when the CJEU has published its judgment.