In January 2020 the Migration Law Clinic issued an expert opinion concerning a case in which the Dutch Council of State had 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 asked the Court of Justice EU whether an EU citizen has complied with a deportation decision, taken on the basis of Art. 15 (1) of Directive 2004/38/EC if they have left the territory of the host Member State within the lime-limit for voluntary return. In its expert opinion, the Migration Law Clinic argued that this question should be answered in the affirmative.

However, the CJEU considered in its judgment of 22 June 2021 that an EU citizen has not complied with a deportation decision in full merely because they have physically left that territory within the period prescribed by that decision for their 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 up to the national court to assess whether this is the case.

The expert opinion of the Migration Law Clinic has been published here.