British nationals with criminal convictions who want to travel to Europe and British nationals in Europe who have been convicted of offences in Europe may be in for trouble with recent case reports.
Case C‑380/18 Staatssecretaris van Justitie en Veiligheid v E.P.
This is the case concerning a ‘third-country national’ or non-EEA national who entered the Netherlands on a Schengen visa. When E.P. was in the Netherlands, he was suspected of having committed an infringement of Netherlands criminal legislation relating to drugs.
Due to his arrest, the State Secretary ordered E.P. to leave the Netherlands on the grounds that he no longer fulfilled the conditions set out in the Schengen Borders Code as he posed a threat to public policy.
The code reads:
Article 6(1) of the Schengen Borders Code provides:
‘For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:
(d) they are not persons for whom an alert has been issued in the [Schengen Information System (SIS)] for the purposes of refusing entry;
(e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national databases for the purposes of refusing entry on the same grounds.’
E.P. won his initial challenge against the decision in the district court in the Netherlands and the decision to expel E.P. was annulled. The State Secretary appealed, and the case was heard by the Court of Justice of the European Union. E.P. had attempted to argue that the Directive which covers the free movement of European nationals within Europe also applied to him. That is the Directive that requires that the person being removed is a present and sufficiently serious threat to public policy, public security or public health.
The Court of Justice of the European Union concluded that competent national authorities may issue a return decision to third-country national who is present in the Member State for a short stay, on the basis that that person is considered to be a threat to public policy because he or she is suspected of having committed an offence in the event that the offence is sufficiently serious and that the authorities have evidence to support their suspicions. This sets a much lower bar than that that applies to EEA nationals.
How will this affect British nationals?
The relevance of this to British nationals is that British nationals are likely to be governed by these rules in the future. This will mean that U.K. nationals with pre-existing criminal convictions or U.K. nationals who commit offences abroad will not be protected by the same law that protects them currently and that prevents their removal.
This is unlikely to have an immediate effect on British nationals. There is currently a transitional period that will see us governed by the same rules as currently and that will end on the 31 December 2020. It may be that that transitional period is extended after that date despite Boris Johnson’s vehement denying that this will happen, it does seem unlikely that a deal can be thrashed out in the time allotted. If the transitional period, however, does end the end of December next year, then it could be that British nationals are subject to the same rules as other third-country nationals. This may result in action being immediately taken by EEA countries with British criminals.