Joined Cases C‑316/16 and C‑424/16

B
v
Land Baden-Württemberg

and

Secretary of State for the Home Department

v

Franco Vomero

(Requests for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg and from the Supreme Court of the United Kingdom)

(References for a preliminary ruling — Citizenship of the European Union — Right to move and reside freely within the territory of the Member States — Directive 2004/38/EC — Article 28(3)(a) — Enhanced protection against expulsion — Conditions — Right of permanent residence — Residence in the host Member State for the 10 years preceding the decision to expel the person concerned from that Member State — Period of imprisonment — Consequences as regards the continuity of the 10-year period of residence — Connection with the overall assessment of an integrative link — Time at which that assessment must be carried out and criteria to be taken into account in that assessment)

Summary — Judgment of the Court (Grand Chamber), 17 April 2018

1. Citizenship of the Union—Right to move and reside freely in 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—Condition for application—Person concerned having a right of permanent residence

   (European Parliament and Council Directive 2004/38, Arts 16, 28(2) and (3)(a))

2. Citizenship of the Union—Right to move and reside freely in 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—Period of continuous residence calculated by counting back from the date of the expulsion decision

   (European Parliament and Council Directive 2004/38, Art. 28(3)(a))

3. Citizenship of the Union—Right to move and reside freely in 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—Interruption of the continuity of residence in the host Member State by a period of imprisonment—Period of 10 years’ continuous residence preceding the period of imprisonment—Overall assessment of the integrative links with the Member State

   (European Parliament and Council Directive 2004/38, Art. 28(3)(a))

4. Citizenship of the Union—Right to move and reside freely in 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—Time at which that assessment must be carried out—Date on which the expulsion decision is adopted

   (European Parliament and Council Directive 2004/38, Art. 27(2), second para., and 28(3)(a))

1.  Article 28(3)(a) of 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 must be interpreted as meaning that it is a prerequisite of eligibility for the protection against expulsion provided for in that provision that the person concerned must have a right of permanent residence within the meaning of Article 16 and Article 28(2) of that directive.

   (see para. 61, operative part 1)

2.  See the text of the decision.

   (see paras 64-66)

3.  Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that, in the case of a Union citizen who is serving a custodial sentence and against whom an expulsion decision is adopted, the condition of having ‘resided in the host Member State for the previous ten years’ laid down in that provision may be satisfied where an overall assessment of the person’s situation, taking into account all the relevant aspects, leads to the conclusion that, notwithstanding that detention, the integrative links between the person concerned and the host Member State have not been broken. Those aspects include, inter alia, the strength of the integrative links forged with the host Member State before the detention of the person concerned, the nature of the offence that resulted in the period of detention imposed, the circumstances in which that offence was committed and the conduct of the person concerned throughout the period of detention.

   (see para. 83, operative part 2)

4.  Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that the question whether a person satisfies the condition of having ‘resided in the host Member State for the previous ten years’, within the meaning of that provision, must be assessed at the date on which the initial expulsion decision is adopted.

   (see para. 95, operative part 3)