CJEU - C‑554/13 Z. Zh. and O. V Staatssecretaris van Veiligheid en Justitie

Facts:

Mr. Zh is a Chinese national who was arrested while transiting the Netherlands and convicted for possessing a false travel document. He was ordered to leave the EU immediately without a period for voluntary return, and was deported following his custodial sentence.

Mr. O, also a third country national, overstayed his visa and was later arrested and detained on suspicion of domestic abuse of a woman. He was ordered to immediately leave the EU without a period for voluntary departure on the basis that he constituted a risk to public policy and detained pending removal.

The cases came before the Council of State (Raad van State) on appeal and it sought guidance on the following questions from the CJEU:

1.      Does a third-country national who is staying illegally within the territory of a Member State pose a risk to public policy, within the meaning of Article 7(4) of [the Returns Directive], merely because he is suspected of having committed a criminal offence under national law, or is it necessary that he should have been convicted in a criminal court for the commission of that offence and, in the latter case, must that conviction have become final and absolute?

2.      In the assessment as to whether a third-country national who is staying illegally within the territory of a Member State poses a risk to public policy within the meaning of Article 7(4) of the Returns Directive, do other facts and circumstances of the case, in addition to a suspicion or a conviction, also play a role, such as the severity or type of criminal offence under national law, the time that has elapsed and the intention of the person concerned?

3.      Do the facts and circumstances of the case which are relevant to the assessment referred to in Question 2 also have a role to play in the option provided for in Article 7(4) of the Returns Directive, in a case where the person concerned poses a risk to public policy within the meaning of that provision, of being able to choose between, on the one hand, refraining from granting a period for voluntary departure and, on the other hand, granting a period for voluntary departure which is shorter than seven days?’

Decision & reasoning:

In relation to the first question, the CJEU considered that the concept of ‘risk to public policy’ must be determined by considering their usual meaning in everyday language, with a contextual and purposive analysis. As it constituted a derogation from the general principle that voluntary departure should be granted, it should be interpreted strictly and with due respect for the principle of proportionality.

The Court considered that the concept of ‘risk to public policy’ must be assessed on a case by case basis in order to ascertain whether the personal conduct of the third-country national concerned poses a genuine and present risk to public policy.

As such, a Member State could not rely solely on the fact that the person concerned was suspected, or had been convicted, of a criminal offence to justify a finding that they posed a risk to public policy within Article 7(4). This is however relevant, taken together with other circumstances relating to the situation of the person concerned, even if a criminal conviction is not yet final, or was a mere suspicion.

With regard to the second question, the Court noted that Article 7(4) in different language versions used the term ‘danger’ as well as ‘risk’ which should be understood in the sense of ‘threat’ [51]. In answering the second question, it found that “the concept of ‘risk to public policy’…presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. Any factual or legal matter which sheds light on whether the third-country national’s personal conduct poses a threat was relevant to assessing this threat [60-61]. Where the third-country national was suspected or convicted of a criminal offence, this therefore included factors such as the nature and seriousness of the act, the time elapsed, the circumstances of detention and the credibility of any alleged suspicion.

Finally, the Court found that it was unnecessary to conduct a fresh assessment of the risk when, having found that a person posed a risk to public policy, it was deciding whether to shorten the period for voluntary departure, or refrain from granting a period at all [73]. However Member States should ensure that a case-by-case assessment is conducted of whether the refusal to grant such a period is compatible with that person’s fundamental rights, and could not do so automatically [70].

Outcome:

The Court ruled:  

1.       Article 7(4) of 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 must be interpreted as precluding a national practice whereby a third-country national, who is staying illegally within the territory of a Member State, is deemed to pose a risk to public policy within the meaning of that provision on the sole ground that that national is suspected, or has been criminally convicted, of an act punishable as a criminal offence under national law.

2.        Article 7(4) of Directive 2008/115 must be interpreted to the effect that, in the case of a third-country national who is staying illegally within the territory of a Member State and is suspected, or has been criminally convicted, of an act punishable as a criminal offence under national law, other factors, such as the nature and seriousness of that act, the time which has elapsed since it was committed and the fact that that national was in the process of leaving the territory of that Member State when he was detained by the national authorities, may be relevant in the assessment of whether he poses a risk to public policy within the meaning of that provision. Any matter which relates to the reliability of the suspicion that the third-country national concerned committed the alleged criminal offence, as the case may be, is also relevant to that assessment.

Article 7(4) of Directive 2008/115 must be interpreted as meaning that it is not necessary, in order to make use of the option offered by that provision to refrain from granting a period for voluntary departure when the third-country national poses a risk to public policy, to conduct a fresh examination of the matters which have already been examined in order to establish the existence of that risk. Any legislation or practice of a Member State on this issue must nevertheless ensure that a case-by-case assessment is conducted of whether the refusal to grant such a period is compatible with that person’s fundamental rights.

Observations/comments:

Advocate General Sharpston gave an Opinion, in which she gave detailed consideration of how to interpret ‘risk to public policy’ and opposed any comparison by analogy to the public order exceptions in the Citizenship Directive, the Long-Term Residence Directive and the Family Reunification Directive.  A summary of her opinion can be found here.

Professor Steve Peers has analysed the judgment here. 

Other sources:

Article 27(1) Free Movement of Citizens Directive

Article 6(1) Long Term Residence Directive