CJEU finds long-term residence status cannot be automatically refused on grounds of public policy due to criminal conviction

The Court of Justice of the EU (CJEU) has found that national authorities cannot automatically refuse long-term residence status on grounds of public policy merely because of a conviction of some or other criminal offence.

The case concerned the interpretation of Directive 2003/109/EC on the status of third-country nationals who are long-term residents. Under Article 6(1), Member States are permitted to refuse long-term residence status on public policy or public security grounds, such as a criminal conviction. The following factors “shall” be taken into consideration: the severity or the type of offence, or the danger that emanates from the person concerned, the duration of residence and the existence of links with the country of residence.

The proceedings involved the joining of two cases by applicants seeking long-term residence status in Spain. One applicant, UQ, was sentenced to community service and temporary suspension of his driving licence for drunk driving. The other applicant, SI, was sentenced to imprisonment of 11 months for forgery of public documents, suspended for two years. Both applications were rejected due to prior convictions.

The cases were referred by the Barcelona Administrative Courts to the CJEU, which was asked whether long-term residence status may be refused solely on the basis of a criminal record, of any nature, without a specific assessment of the applicant’s situation with regard, in particular, to the nature of the offence committed, the threat that they represent to public policy or public security, the length of residence and the existence of links with that Member State.

The Court emphasised that Article 6(1) provides for the option, and not the obligation, for Member States to refuse to grant long-term resident status on grounds of public policy or public security. The Court opined that Article 6(1) makes clear that a refusal to grant long-term residence status requires the consideration and weighing up of certain factors on a case-by-case basis. This precludes a refusal to grant long-term resident status to the person concerned solely on the ground that they have previous convictions, whatever their nature.

This interpretation was seen to be in line with precedent on free movement (see K and H.F., Ziebell, Orfanopoulos and Oliveri), which provides that measures justified on grounds of public policy or public security may only be taken if it is shown that the personal conduct of the individual concerned currently constitutes a genuine and sufficiently serious threat to a fundamental interest of society.

The Court also pointed to Article 12(3) of the Long-Term Residents Directive, which is similarly worded Article 6(1) and concerns expulsion of long-term residents, was found to mean that a decision to expel may not be adopted against a third- country national for the sole reason that they have been sentenced to a term of imprisonment of more than one year in duration.

Click here to read the decision in full.



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