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CJEU on registration certificates and exclusion orders: implications for practice

CJEU on registration certificates and exclusion orders: implications for practice

Ovidiu-Mihaita Petrea emigrated from Romania to Greece, ready to build a new life there. However, he made a big mistake: he committed robbery and was sentenced by a Greek criminal court in 2011.

Exclusion order and return

Article 27 of Directive 2004/38 states that EU member states may limit free movement of EU citizens on grounds of public security, public policy, or public health. Accordingly, the Greek government ordered Mr Petrea’s return to Romania on 30 October 2011. His name was entered into the list of “undesirable aliens” – barring him from entry to Greece until 30 October 2018.

Mr Petrea had been informed, in writing and in a language he understood, “of his rights and redress available to him, and of the possibility of requesting a written or oral translation of the main parts of the return order”.

He did not make any such request. Rather, he returned to Romania in November 2011, having waived his right to legal remedies against the order.

Perhaps considering himself a reformed character, Mr Petrea returned to Greece on 1 September 2013. He applied for and immediately received a registration certificate from the Greek authorities confirming his EU citizenship, implying a right to reside in Greece. This was promptly rescinded once the authorities realised that he was still subject to the exclusion order above.

Mr Petrea challenged the withdrawal of the certificate by means of judicial review, with a number of heads, including:

  1. That he no longer represented a danger to public security or public policy;
  2. That simply realising that an individual is subject to an exclusion order is insufficient by itself to allow an administration to withdraw an exclusion order;
  3. That the original decision to put him on the exclusion list was unlawful; and
  4. That he should, under EU law, have been sent the original return order in a language which he understood.

His claim was rejected initially, and the challenges concerning the original decision were deemed out of time, particularly given that he had the chance to challenge the order when it was made but chose not to. He then brought an action before the Administrative Court in Thessaloniki. This court referred several questions to the Court of Justice of the European Union, which for our purposes can be distilled into three main heads:

  1. Does EU law preclude a member state from withdrawing a residence certificate wrongly granted? If not, does EU law prevent a residence certificate being withdrawn solely because the administration has realised that an individual is on the exclusion list? May a country then use the same procedures as for removing non-EU nationals?
  2. Does the EU law principle of effectiveness prevent limitation rules on actions against exclusion orders?
  3. Does EU law require exclusion orders to be sent to the relevant individual in a language which they understand, even if they do not bring an application to that effect?

CJEU decision

The CJEU gave a forceful, yet balanced and limited, judgment against Mr Petrea.

In answer to the first head, the CJEU stated that member states are not prevented from withdrawing a residence certificate, even for the sole reason that the administration realised that the individual concerned was on the exclusion list. However, the removal procedure for the EU national must comply with Directive 2004/38, which may prove favourable to them. Or as the court put it:

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/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC and the protection of legitimate expectations do not preclude a Member State from, first, withdrawing a registration certificate wrongly issued to a EU citizen who was still subject to an exclusion order, and, secondly, adopting a removal order against him based on the sole finding that the exclusion order was still valid.

Directive 2004/38 and Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals do not preclude a decision to return a EU citizen, such as that at issue in the main proceedings, from being adopted by the same authorities and according to the same procedure as a decision to return a third-country national staying illegally referred to in Article 6(1) of Directive 2008/115, provided that the transposition measures of Directive 2004/38 which are more favourable to that EU citizen are applied.

On the second head, the answer was a balanced ‘no’. The EU law principle of effectiveness does not prevent limitation rules on actions against exclusion orders – but only so long as the person involved has had “effectively the possibility” to challenge the exclusion order when it was first brought.

The principle of effectiveness does not preclude a legal practice according to which a national of a Member State who is subject to a return order in circumstances such as those at issue in the main proceedings may not rely, in support of an action against that order, on the unlawfulness of the exclusion order previously adopted against him, in so far as the person concerned had effectively the possibility to contest that latter order in good time in the light of the provisions of Directive 2004/38.

As regards the third head, the CJEU reiterated that the correct requirement laid down by Article 30(1) of Directive 2004/38 is that “the persons concerned are to be notified in writing of any decision taken under Article 27(1) ‘in such a way that they are able to comprehend its content and the implications’”.

The court, in short, stated that where someone has had an opportunity to ask for the decision letter to be translated and has not done so, there is no free-standing requirement to provide that information. Or, in other words:

Article 30 of Directive 2004/38 requires the Member States to take every appropriate measure with a view to ensuring that the person concerned understands the content and implications of a decision adopted under Article 27(1) of that directive but that it does not require that decision to be notified to him in a language he understands or which it is reasonable to assume he understands, although he did not bring an application to that effect.

It is left to the member states’ courts to decide whether the person is “able to comprehend [the decision’s] content and the implications”. This is a neat use of the principle of subsidiarity, allowing member states’ courts to decide whether national agencies have taken every appropriate measure to ensure understanding.

What does this mean for us in the UK?

Section 31 of the Immigration (European Economic Area) Regulations 2016 deals with revocation of admission for EU nationals. This case means that the provisions of Schedule 2 of the Immigration Act 1971 (i.e. those relating to non-EU nationals) apply in the case of EU nationals in that particular situation. It also requires that any guarantees which Directive 2004/38 gives to EU nationals still apply during this procedure.

This decision additionally means that the Home Office is not required to give decision letters in a language which the individual understands, so long as the person involved have had a real opportunity to apply for the letter to be translated into such a language. In practice this is likely to mean a letter in their own language explaining their right to have the decision letter translated.

An adviser may wish to consider checking whether the client wishes a translation of the letter into their own language, so that the applicant themselves can fully understand the letter – since the failure to do so by the Home Office would not be prohibited by EU law if the applicant does not apply for it.

Likewise, the Home Office will not be barred by EU law from revoking a registration certificate simply because they realised an individual was on an exclusion list. It is unclear, but for reasons of legal certainty unlikely, that this case extends to allowing such a certificate to be revoked just because the Home Office has realised its own analysis was wrong.

Source: Case C-184/16 Ovidiu-Mihăiţă Petrea v Ypourgos Esoterikon kai Dioikitikis Anasygrotisis

Paul Erdunast
LLM student at Cambridge University. Formerly a full-time Education and Community Care Paralegal at Just for Kids Law, Intern at Hackney Community Law Centre and Legal Caseworker at the AIRE Centre. GDL graduate from City University. Previously studied Classics at Worcester College, Oxford. Interested in immigration, asylum and refugee law and policy.

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