On the Futility of Expelling Poor Union Citizens in an Open Border Europe

Abstract

What is the point of expelling illegally residing EU citizens when they would be able to immediately return in an open-border Europe? This Insight critically discusses the opinion by Advocate-General Rantos in the FS v Staats-secretaris van Justitie en Veiligheid case (C‑719/19), where an EU citizen had been expelled from the Nether-lands for lacking employment and sufficient resources but returned a month later to claim a renewed right of residence under art. 6 of the Citizenship Directive. It is argued that the Advocate-General's line of reasoning and solution for the problem should have shown more awareness of existing legal doctrine and the actual functioning of Member State administrations. Specific criticism is directed at his attempt to frame "police resources" as part of the social assistance system, his return to formalism in the adjudication of EU citizens' rights and his use of (another) "case-by-case" assessment as a solution to the problem. A presumptive threshold of three months absence seems least bad amongst alternatives to assess whether EU citizens comply with an expulsion decision, especially in light of clarity and legal certainty for both EU citizens and national authorities.