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EU Rights in the Spotlight – November

07 November 2016

In September 2016, the European Court of Justice issued an important ruling on the rights of third-country nationals in charge of EU minors and, in early November, the UK’s High Court delivered a landmark judgment with implications for the UK’s exit negotiations with the EU, and, therefore, for citizens’ rights.

The EU Court on the rights of third-country nationals in charge of EU minors

The ECJ judgment concerns two cases brought by third-country nationals to the Supreme Court of Spain and the UK’s Upper Tribunal, respectively. Both cases involved two parents from non-EU countries who were in sole charge of their children, who were EU citizens. Because of the existence of a criminal record looming over them, they were refused the right of residence and served with a deportation order by the authorities in the host Member State in which they had been living.

The Spanish Supreme Court and the UK’s Upper Tribunal referred these cases to the EU Court asking whether national legislation providing for these measures was compatible with EU law. Through a joint reading of the Citizenship Directive 200/38/EC, the TFEU and the EU Charter of Fundamental Rights, the European Court held that EU law does not permit a national of a non-EU country with sole care of an EU citizen who is a minor to be automatically refused a residence permit or to be expelled from EU territory on the grounds that he/she has a criminal record.

The Court admitted, however, the possibility that a Member State could adopt an expulsion measure on public policy and public security grounds, but contended that these concepts must be strictly interpreted. In order to justify the adoption of an expulsion measure, it must be proven that this measure is proportionate and founded on the personal criminal conduct of the third-country national, which must constitute a ‘genuine, present and sufficiently serious threat that may adversely affect one of the fundamental interests of the society of the host Member State’. In other words, the relevant Tribunal must assess whether the defendant constitutes a real danger to society by weighing up the interests involved.

UK High Court’s landmark judgment

The UK High Court’s much anticipated judgment in the R (Miller) vs Secretary of State for Exiting the European Union case has finally been delivered.  Ms Gina Miller and other claimants brought a case before the Court asking whether the UK Government was entitled to notify an intention to leave the European Union by triggering Article 50 of the TFEU without a vote in Parliament. The High Court ruled that the Royal Prerogative, which is in effect exercised by the Prime Minister, cannot remove rights which have been enacted by Parliament through primary legislation. The Court adjudged that the UK Parliament is sovereign and that the Crown is not entitled to change domestic law by use of its prerogative powers. Therefore, the UK Parliament alone has the power to trigger Article 50 and start the exiting procedure. This landmark judgment, which suggests a greater role for Parliament in the exit talks, is likely to further delay the launch of the negotiations.