Expelling the Roma: Is It Legal?

The recent police operation in France leading to the expulsion of thousands of Roma citizens of Romania and Bulgaria has been a hot topic in the news for some time. Now Euractiv reports that Italy has also plans to expel Roma citizens of other Member States.

The big question here is – is it legal?

There are two separate legal systems that must be assessed in this case. One is the European Union law, and the other is the European Convention on Human Rights. These two systems must not be mixed together in the analysis, and they have different outcomes.

Let’s start with EU law. The citizens of the European Union have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect (art 3, para. 2 TEU; art. 20, para. 2, “a” and art. 21 TFEU). Most of these limitations and conditions are provided in Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The main principle of Directive 2004/38/EC is that the right of residence for Union citizens and their family members for periods in excess of three months is subject to conditions. This is very important to note, since many EU citizens mistakenly believe that their right of residence is unconditional.

These conditions for the right of residence over three months are spelled out in art. 7 of Directive 2004/38/EC. The resident should be a worker or self-employed person in the host Member State or should have sufficient resources for himself and the family members in order not to become a burden on the social assistance system of the host Member State. Art. 14 stipulates the conditions for an expulsion measure and specifically points out that the expulsion measure should not be the automatic consequence of a Union citizen’s recourse to the social assistance system of the host Member State.

In addition to that Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. 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. 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 cannot be accepted (art. 27, para. 2 of Directive 2004/38/EC).

These texts are very concrete, and they raise important questions about the conduct of French authorities. In each and every case of expulsions the French state must have assessed the personal conduct of the individual, any general policy concerns notwithstanding. The information that is delivered by the media in this case is insufficient to assess the legality of the actions of the French Ministry of the Interior, but I am quite skeptical that they have been able to go though individual assessment of personal conduct in each of the cases. More, the reference to the ethnicity of the persons expelled is a serious breach of the principle of non-discrimination (art. 19, para. 1 TEU).

That being said, it is the European Commission that must decide whether in this case France has breached the relevant texts of Directive 2004/38/EC. I would also urge the European Ombudsman to independently observe this case.

Apart from the considerations about EU law, France is a party to the European Convention on Human Rights. Mevlüt Çavuşoğlu, President of the Parliamentary Assembly of the Council of Europe, has voiced some criticism towards the measures. Article 4 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms explicitly prohibits the collective expulsion of aliens. Now the question is whether the actions of French authorities constitute such a collective expulsion.

In conclusion the actions of the French authorities for the mass expulsion of Roma citizens of other member states may breach relevant EU law and texts of the European Convention for the Protection of Human Rights and Fundamental Freedoms. France should restrain from any actions that constitute collective expulsion. The European Commission should fully investigate this case. The Council of Europe should also carefully monitor this case.

11 responses to “Expelling the Roma: Is It Legal?

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  8. What is unclear with regard to Directive 2004/38 is what a Member state is allowed to do if a person resides more than 3 months in its territory without complying with the provisions of article 7 of the Directive. Imagine that a Belgium citizen has no ressources and no medical insurance but is nevertheless staying, say in Denmark beyond the 3-months period. What can the Danish authorities do ? Request him kindly not to stay ? This person may not even try to have recourse to the social assistance system of the country but simply live of mendicity. May Denmark expel this person ? In view of the Directive and of the Court of Justice case law, I think that in such a case the member State has a right to expell the person. Should it be different when it is not a single individual but thousands of EU citizens + family that are residing in a Member State beyond the 3 months period and have no ressources ? If the “host” member State can demonstrate that these persons lack sufficient ressources I think that it is possible to expell them. Otherwise, what the conditions laid down in article 7 Directive 2004/38 would be very easily circumvented.

  9. You make a number of good points in this post. An interesting blog you have here. The economic self sufficiency of (non national but) EU citizens is an issue under the 2004 Directive.

    In addition to the Directive of 2004 there is provision in the EU Charter of Fundamental Rights for the right to protection against collective expulsions. Article 19 of the EU Charter of Fundamental Rights provides that “Collective expulsions are prohibited.” The fact that the Roma are being deported from France in a collective way is in breach of this.

    It is possible to derogate from the Charter right as long as the conditions in Article 52 are being followed (1) “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”

    It is very hard to see how the expulsions would protect the rights and freedoms of others.

    Proportionality would have to include an assessment of the degree of integration that each individual that “needs” to be expelled has with the society. It is unlikely that this has been done.

    Commissioner Viviane Reding has recommended that an infringement action be made by the Commission on the grounds that there is a discriminatory application of the Free Movement Directive by France and also infringement proceedings against France for lack of transposition of the procedural and substantive guarantees under the Free Movement Directive.

    This would be a brave thing to do. The Commission as a collective body may be a quite bit afraid to bring proceedings. It would win them few friends among some member state governments.

    What IS EU fundamental rights policy on this issue? Time will tell.

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  11. Very interesting discussion indeed. One more point which is unclear whether France observed is the issue of notifications and appeals and the obligation not to execute the expulsion order if an appeal has an interim order request attached – Article 31 of the Directive. However it is unclear to me and I would be grateful if someone elucidates me on the question are the bans to return in France legal after such expulsion took place, here I am referring to Article 15 (3)of the Directive (it is a bit unclear to me).

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