Case C‑752/22
EP
v
Maahanmuuttovirasto
(Request for a preliminary ruling from the Korkein hallinto-oikeus)
Judgment of the Court (Second Chamber) of 14 March 2024
(Reference for a preliminary ruling – Immigration policy – Status of third-country nationals who are long-term residents – Directive 2003/109/EC – Articles 12 and 22 – Reinforced protection against expulsion – Applicability – Third-country national residing in the territory of a Member State other than the one which had granted him long-term resident status – Decision taken by that other Member State on grounds of public policy and public security to remove the person concerned to the Member State which had granted him that status – Temporary ban on entering the territory of that other Member State imposed by that other Member State – Breach of the obligation to apply to that other Member State for a residence permit in accordance with the provisions of Chapter III of Directive 2003/109 – Decision taken by that Member State on the same grounds to remove that third-country national to his country of origin)
1. Border controls, asylum and immigration – Immigration policy – Status of third-country nationals who are long-term residents – Directive 2003/109 – Return of illegally staying third-country nationals – Directive 2008/115 – Scope – Removal of a third-country national not lawfully residing in the territory of a Member State but holding long-term resident status in another Member State – Application of the provisions of Directive 2003/109
(European Parliament and Council Directive 2008/115; Council Directive 2003/109)
(see paragraph 50)
2. Border controls, asylum and immigration – Immigration policy – Status of third-country nationals who are long-term residents – Directive 2003/109 – Protection against expulsion – Scope – Removal from the territory of the European Union, by the second Member State, of a third-country national who is a long-term resident, on grounds of public policy or public security – Removed national residing in the territory of the second Member State in breach of an entry ban who has not applied for a residence permit in that Member State in accordance with the provisions of Chapter III of Directive 2003/109 – Included
(Council Directive 2003/109, recital 16 and Arts 2(d), 15 and 22)
(see paragraphs 54-71, operative part 1)
3. Border controls, asylum and immigration – Immigration policy – Status of third-country nationals who are long-term residents – Directive 2003/109 – Protection against expulsion – Decision to remove a third-country national who is a long-term resident from the territory of the European Union on grounds of public policy or public security – Provisions laying down protection against expulsion – Direct effect
(Council Directive 2003/109, Arts 2(d), 12(3) and 22(3))
(see paragraphs 73, 74, 76-79, operative part 2)
Résumé
Ruling on a request for a preliminary ruling from the Korkein hallinto-oikeus (Supreme Administrative Court, Finland), the Court of Justice determines whether a third-country national who is a long-term resident in one Member State enjoys reinforced protection against expulsion from the territory of the European Union, provided for by Directive 2003/109, (1) in another Member State whose territory he or she has entered in breach of an entry ban.
EP, a Russian national, holds a long-term resident – EU residence permit which was issued by Estonia for a period of five years and attests that he has long-term resident status in that Member State. Before obtaining that status, EP had entered Finland on numerous occasions where he was subject to four decisions for his removal to Estonia, three of which were accompanied by a ban on entering Finnish territory. Those decisions were adopted in response to EP’s convictions in Finland for various offences.
By decision of 19 November 2019, the Maahanmuuttovirasto (Immigration Service, Finland) decided to expel EP to Russia on the ground, inter alia, of the threat he posed to public policy and public security in Finland. Although EP did not object to his removal to Estonia, he did object to being removed to Russia. He argued that he had resided almost his entire life in Estonia and had no ties to Russia other than his nationality. Following the dismissal, at first instance, of his action against the expulsion decision, EP brought an appeal before the Supreme Administrative Court, which is the referring court.
Before that court, the Immigration Service submitted, in particular, that Directive 2003/109 was not applicable to EP’s removal because he was not residing legally in Finnish territory. Indeed, EP was subject to a ban on entering Finnish territory and had not applied for a residence permit there after entering Finland with a long-term resident – EU residence permit issued by another Member State. Accordingly, in the light of those two circumstances, it is Directive 2008/115 (2) which is applicable to his removal. In accordance with that directive, a return decision can only order a person’s return to a third country, not to another Member State. The question also arises as to whether those two circumstances prevent EP from receiving the reinforced protection against expulsion conferred by Article 22(3) of Directive 2003/109. (3)
In those circumstances, the referring court asks the Court whether the provisions of Directive 2003/109 laying down reinforced protection against expulsion for third-country nationals are applicable in the present case and whether those provisions have direct effect such that they can be relied on as against the competent public authorities. The Court answers both questions in the affirmative.
Findings of the Court
In the first place, the Court states, as a preliminary point, that, since the provisions of Directive 2003/109 laying down reinforced protection against expulsion for third-country nationals who are long-term residents are ‘more favourable’ for such nationals than the provisions on removal laid down in Directive 2008/115, it is those former provisions which apply to the removal from the territory of the European Union of a third-country national who is a long-term resident, such as the person concerned in the main proceedings. (4)
Next, it finds that the wording of Article 22(3) of Directive 2003/109 does not provide a basis for interpreting that provision in such a way that the reinforced protection against expulsion from the territory of the European Union which it lays down does not apply where, first, a third-country national with long-term resident status in the first Member State is staying on the territory of the second Member State in breach of an entry ban and, second, he or she has not applied for a residence permit in that second Member State in accordance with the provisions of Chapter III of that directive. However, the wording of Article 22(1)(b) and (c) of that directive, for its part, expressly refers to those two circumstances as grounds justifying the adoption, in respect of such a third-country national, of a decision to remove him or her from the territory of that Member State. (5) Such an express reference to those two circumstances as grounds able to justify the adoption of a removal decision supports the conclusion already drawn from the wording of Article 22(3) of Directive 2003/109 that the existence of those circumstances does not have the effect of rendering that latter provision inapplicable.
As regards, in particular, the ground relating to failure to apply for a residence permit, it is true that the wording used in Article 22(1) of that directive, namely the reference to the power to refuse to renew or to withdraw a residence permit granted in accordance with the provisions of Chapter III of that directive, might suggest that that provision is concerned only with a situation relating to the withdrawal or non-renewal of such a permit. However, the fact remains that that provision expressly refers not only to measures by the second Member State refusing to renew or withdrawing a residence permit granted in accordance with the provisions of Chapter III, but also to other measures such as, specifically, decisions to remove the person concerned from the territory of that Member State.
That literal and contextual interpretation of Article 22(3) of Directive 2003/109 is also borne out by the purpose of that provision. In so far as that interpretation is based on a delimitation of the respective scopes of paragraphs 1 and 3 of Article 22 of Directive 2003/109, depending on whether the case involves removal from the territory of the second Member State or removal from the territory of the European Union and the resulting reinforced protection against expulsion in its different permutations, it makes it possible to avoid loopholes in the arrangements for ‘reinforced protection against expulsion’ which Article 22 of that directive seeks to achieve, and, therefore, also ensures that those arrangements are effective.
In the second place, the Court finds that Article 12(3) and Article 22(3) of Directive 2003/109 are capable of producing a direct effect to the advantage of the third-country nationals concerned, with the result that they may rely on those provisions against the competent public authorities. Those provisions are unconditional and sufficiently precise in that, without imposing any condition or necessitating the adoption of additional measures, they unequivocally require the second Member State, when it takes a decision to remove from the territory of the European Union a third-country national who is a long-term resident on grounds of public policy or public security, to ensure compliance with the various conditions (6) and guarantees (7) established in favour of such a third-country national, which are in keeping with the objective of reinforced protection against expulsion pursued by Directive 2003/109.