Prof Valsamis Mitsilegas, Head of the School of Law at Queen Mary University of London and member of Britain in Europe, has recently drafted an EU referendum position paper on free movement and criminal law. The paper was commissioned by the Immigration Law Practioners' Association and is available from the Association's webpage.
One of the key issues relates to the exclusion and expulsion of EU citizens on security grounds. The paper underlines that this issue features up in the renegotiated settlement agreed between the UK and EU in February 2016.
The agreed measures will be implemented if the UK votes to Remain. They include the Commission revisiting the serious and imperative grounds thresholds at the time of a future revision of the Citizens’ Directive, and in the meantime issuing new guidance to ‘clarify’:
- that Member States may take into account past conduct of an individual in determining whether their conduct poses a present threat to public policy and public security
- that Member States may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned,
- and the definitions of serious grounds of public policy and imperative grounds of public security
The paper also provides a response to the claim that is often made that free movement enables the entry into the territory of Member States of EU citizens who have been convicted of criminal offences in their Member States of nationality or residence. Mitsilegas notes that EU law has developed an extensive mechanism of exchange of information of criminal records of EU citizens, which should enable national authorities to have a full picture of the criminal record status of EU citizens who enter their territory.
When discussing the emblematic (but also controversial) European Arrest Warrant, the paper offers a useful reminder that the the Cour of Justice of the EU has recently confirmed that execution of a warrant may be refused on human rights grounds.
A final important point relating to preventing the entry of individuals deemed to pose security threats concerns the introduction of a system allowing for the recording of a wide range of personal data for passengers on all flights flying into the EU. At the time of writing of the report, the EU PNR Directive has been agreed by the Council and the European Parliament and is awaiting publication in the Official Journal. The Directive gives Member States the option to apply it also to intra-EU flights.
