Alfredo Rendón Marín

The Court states next that the FEU Treaty confers the status of EU citizen on every person who is a national of a Member State. By virtue of that status, every EU citizen has the right to move and reside freely within the territory of the Member States. Accordingly, the Court finds that Mr Rendón Marín’s son and CS’s child, who are EU citizens, qualify for such a right. The Court points out that the FEU Treaty precludes national measures which are liable to deprive EU citizens of the genuine enjoyment of the rights conferred by virtue of their status as EU citizens. Such deprival occurs where refusing a national of a non-EU country a residence permit or expelling him would have the effect of obliging his child, an EU citizen in his sole care, to go with him and, therefore, to leave the territory of the European Union.

However, the Court explains that the status of EU citizen does not affect the possibility for the Member States of justifying a derogation from the right of residence of EU citizens or their family members (whether that right is exercised under the directive or under the Treaty) on grounds, in particular, of public policy or public security. Such a derogation must observe the Charter of Fundamental Rights and the principle of proportionality and must be based on the personal conduct of the individual concerned in order to ascertain whether he represents a genuine, present and sufficiently serious threat affecting the society of the host Member State. For the purpose of determining whether that derogation is consistent with the principle of proportionality, account should be taken of certain criteria, such as the duration of his residence, his age, his state of health, his family and economic situation, his social and cultural integration, the extent of his links with the country of origin and the degree of gravity of the offence.

So far as concerns the situation of Mr Rendón Marín, the Court explains that his criminal conviction in 2005 cannot in itself constitute grounds for refusing a residence permit, without assessment of his personal conduct or of any danger that he could represent for the requirements of public policy or public security.

In addition, the Court accepts that, in exceptional circumstances, a Member State may adopt an expulsion measure by relying on the exception linked to upholding the requirements of public policy and safeguarding public security, concepts which must be interpreted strictly. In order to justify such an expulsion measure, it is necessary to assess whether, having regard to the criminal offences committed by a national of a non-EU country having the sole care of a minor who is a Union citizen, that national’s personal conduct constitutes a genuine, present and sufficiently serious threat that may adversely affect one of the fundamental interests of society. In this connection, account must be taken of the criteria set out above. The Court holds that, in CS’s case, it is for the United Kingdom tribunal to assess specifically the extent to which she is a danger by weighing up the interests involved (that is to say, the principle of proportionality, the child’s best interests and the fundamental rights whose observance the Court ensures).