Introduction

What safeguards apply in the respect of a decision by a host state (the UK or an EU state), as the case may be) that restricts the movement and residence rights of those protected by the Withdrawal Agreement?  Under Article 21 of the Agreement, provision for safeguards is made by reference to the free movement Directive (2004/38/EC). How does this work under the Withdrawal Agreement?

Who is protected?

All persons who fall within the personal scope of the Withdrawal Agreement are protected, see my posts The Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights, Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Direct Family Members, and Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Indirect Family Members.

What decisions are targeted?

Those who fall within the personal scope of the Withdrawal Agreement are protected in respect of any decision by the host State (the UK, or an EU state, as the case may be) that restricts movement and residence rights.

What are the safeguards?

General considerations

The safeguards set out below apply to all decisions restricting entry, residence, and expulsion rights and not simply to those decisions made on the basis of public policy, public security or public health. Thus, the protection below extends to situations where an application for a residence document is not accepted as made, where the application is refused because the applicant does not meet the conditions attached to the right of residence, and where they no longer meet such conditions.

Where a decision is made other than on grounds of public policy, public security or public health, no ban on entry in the context of an expulsion decision may be imposed.

The expiry of an ID card or passport used by the person concerned to enter the host state (the UK or an EU state, as the case may be) and which was used by that person to secure a residence document does not constitute a ground for expulsion from that state.

General principles as regards decisions made on grounds of public policy, public security, and public health

The host state (the UK or an EU state, as the case may be) may restrict the movement and residence of the person on grounds of public policy, public security or public health.

A restriction on movement or residence may not be invoked to serve economic ends.

Measures taken on grounds of public policy or public security must comply with the principle of proportionality and must be based exclusively on the personal conduct of the individual concerned.

Previous criminal convictions do not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention are not to be accepted.

In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing a residence document or, in the absence of a system for confirming residence status, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting their presence within the territory, the host state (the UK or an EU state, as the case may be) may, should it consider this essential, request the state of origin and, if need be, other states to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. Th state consulted must give its reply within two months

The state which issued the passport or ID card must allow the holder of the document who has been expelled from the other state to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.

Protection against expulsion

Before taking an expulsion decision on grounds of public policy or public security, the host state (the UK or an EU state, as the case may be), must take account of considerations such as how long the individual concerned has resided on its territory, their age, state of health, family and economic situation, social and cultural integration into the host state and the extent of their links with the country of origin.

The host state (the UK or an EU state, as the case may be) may not take an expulsion decision against an EU citizen or UK national (as the case may be) or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. A Hungarian architect who has been employed in the UK for five years has such protection.

An expulsion decision may not be taken against an EU citizen or a UK national (as the case may be), except if the decision is based on imperative grounds of public security, as defined by the state concerned, if they:

• have resided in the host state (the UK or an EU state, as the case may be) for the previous ten years (e.g. a self-employed Italian journalist resident in the UK since 2010); or
• are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child

Public health

The only diseases justifying measures restricting movement are the diseases with epidemic potential as defined by the relevant instruments of the World Health Organisation (WHO) and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host state (the UK or an EU state, as the case may be).

Diseases occurring after a three-month period from the date of arrival do not constitute grounds for expulsion from the territory of the host state (the UK or an EU state, as the case may be).

Where there are serious indications that it is necessary, a state may, within three months of the date of arrival, require persons entitled to the right of residence to undergo, free of charge, a medical examination to certify that they are not suffering from any of the conditions referred to above.  Such medical examinations may not be required as a matter of routine.

Notification of decisions

The persons concerned must be notified in writing of any decision to restrict rights of movement or residence, in such a way that they are able to comprehend its content and the implications for them.

The persons concerned must be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of state security.

The notification must specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the state. Save in duly substantiated cases of urgency, the time allowed to leave the territory must be not less than one month from the date of notification.

Procedural safeguards

The persons concerned must have access to judicial and, where appropriate, administrative redress procedures in the host state (the UK or an EU state, as the case may be) to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except:

• where the expulsion decision is based on a previous judicial decision
• where the persons concerned have had previous access to judicial review, or
• where the expulsion decision is based on imperative grounds of public security

The redress procedures must allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They must ensure that the decision is not disproportionate, particularly in view of the requirements for protection against expulsion, see above.

A state may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting their defence in person, except when their appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.

Duration of exclusion orders

Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with EU law as applied by the Withdrawal Agreement, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.

The state concerned must reach a decision on this application within six months of its submission. The persons concerned have no right of entry to the territory of the state concerned while their application is being considered.

Expulsion as a penalty or legal consequence

Expulsion orders may not be issued by the host state (the UK or an EU state, as the case may be) as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of the general principles applicable, the measures for protection against expulsion, and the measures applicable in relation to public health (see above for all three).

If an expulsion order is enforced more than two years after it was issued, the state concerned must check that the individual concerned is currently and genuinely a threat to public policy or public security and must assess whether there has been any material change in the circumstances since the expulsion order was issued.