Case C‑400/12
Secretary of State for the Home Department
v
M.G.
(Request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber), London)
(Reference for a preliminary ruling— Directive 2004/38/EC— Article28(3)(a)— Protection against expulsion— Method for calculating the 10‑year period— Whether periods of imprisonment are to be taken into account)
Summary— Judgment of the Court (Second Chamber), 16January 2014
1.Citizenship of the Union— Right to move and reside freely within the territory of the Member States— Directive 2004/38— Restriction on the right of entry and the right of residence on grounds of public policy or public security— Protection against expulsion— Condition— Residence for the 10 years preceding the expulsion decision— Continuous period of residence calculated by counting back from the date of the expulsion decision
(European Parliament and Council Directive 2004/38, Art. 28(3)(a))
2.Citizenship of the Union— Right to move and reside freely within the territory of the Member States— Directive 2004/38— Restriction on the right of entry and the right of residence on grounds of public policy or public security— Protection against expulsion— Condition— Period of imprisonment interrupting the continuity of the period of residence in the host Member State— Continuous 10-year period of residence prior to the period of imprisonment— Whether that fact is to be taken into consideration as part of the overall assessment of the integrating links with the [host] Member State
(European Parliament and Council Directive 2004/38, Art. 28(3)(a))
1.On a proper construction of Article 28(3)(a) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, the 10-year period of residence referred to in that provision must, in principle, be continuous and must be calculated by counting back from the date of the decision ordering the expulsion of the person concerned.
(see para. 28, operative part 1)
2.Article28(3)(a) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host Member State for the 10 years prior to imprisonment. However, the fact that that person resided in the host Member State for the 10 years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host Member State have been broken.
(see para. 38, operative part 2)