European Tribune - Community, Politics & Progress.

Member States' criminal record exclusion policies...

by euamerican
Sat Jan 26th, 2008 at 03:11:43 PM EST

As a younger person, in the mid-late 1980's I was arrested for some petty offenses...

I have since gone on to work in profession requiring a licence (hairdressing) and served honorably in the military. I have a college education (in criminology, btw), paralegal training, and am going to get my Master's this year. While I was in college I served community service as a mentor with kids in trouble. I serve with youth in my church and I am regarded as a model citizen.

About three years ago, I wanted to take some course work in European community law in Germany. I was told that because of my past life as a hooligan, I could never, ever, in my entire life, be allowed a student permit, or any kind of residency for Germany!

It is my understanding that Member States continue with their "clean record" requirements to obtain any kind of staying permit- and have exclusion policies against those of us with records. These policies are highly unjust and unfair - and probably violate various Community laws.

I started to "protest" these types of "scarlet letter" policies by writing letters to the Commission and elsewhere that would listen. I've have received some advice from them even though immigration is still an exclusive competence of the Member States...

I also started to research this, and while I am still learning about Europe's civil law system, one thing stood out in some of the opinions I was reading: Directive 64/221/EEC from 1964.

The opinion is that the use of criminal record alone to exclude legal work and residency permit holders violates this Directive, and that is based on Article Three where:

"measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned"
"previous criminal convictions shall not in themselves constitute grounds for the taking of such measures."

I have seen in especially Advocate General opinions that a recent criminal conviction - in itself - cannot be used as deny the renewal of a residency permit, and this includes excluding those people whose names turn up in the SIS system, for family reunion purposes, and the like, for third country nationals. I have lots of research in this area to date...and it favors "my side."

Last year that Commission rightfully took Germany to court claiming that Germany was violating this directive in denying residency permit renewals to newly convicted Turkish workers even though Germany actually has 64/221 written in its laws. Germany - it seems, it the biggest offender of 64/221!

Last week I was corresponding by e-mails with a someone at the Council and asked him the question:

Why can't Directive 64/221/EEC also apply to third country nationals seeking first-time residency or student permits - and have minor and dated criminal records in their nation of origin?

He said that he was "forwarding my question to the Commission" - but I have not heard anything back...

Well, I am going to now write the Commission myself (again) and asked them the above question directly...

Exclusive competence of the Member States or not, there is something really rotten when a 20 year old record for immature stupidity is used in this type of fashion, as it is utterly pointless and without regard for what I have contributed to Planet Earth and kids in need since my "bad girl" days.

This is crap - excluding me from any kind of residency in the EU cannot be justified on "grounds of public policy, public security, or public health" Now, I intend to do something about it! ;)

. Home
. About
. Contact
. New User Guide
. FAQ
. Search
. Search (Google)
. Archives (Wiki)
Art, Economics, Energy, Environment, EU Politics, Mech & Tech, By Country

Username:
Password:

. Make a new account
. Reset password

Member States' criminal record exclusion policies... | 13 comments (13 topical, 0 editorial, 0 hidden)

Member States' exclusion policies... (none / 1)

Good work!

There is a news item on that subject on yesterday´s or today´s salon, including some UN lists. It makes sense to have time limits and severity of offenses guidelines. Let us know how it goes.

Our knowledge has surpassed our wisdom. --Charu Saxena.

by metavision on Sat Jan 26th, 2008 at 05:13:55 PM EST

Reasonable and proportioal?. (none / 1)

European Convention on Human Rights? It seems to me, at first glance, that the right to respect for personal and family life and non-discrimination might apply.

The ECHR does allow states to impose restrictions on these rights in various ways, but they need to be reasonable and proportionate in a democratic society.

The ECHR pre-dates the European Union and is not part of the EU structure. f you have not taken legal advice about this, it may help you. I have no idea to what extent you may be able to argue these sort of issues in the German courts, or if you would have to raise them directly with the Strasbourg based court that enforces the Convention.

by Gary J on Sat Jan 26th, 2008 at 11:12:52 PM EST

Re: Reasonable and proportioal?. (none / 1)

Reasonable and proportional is also something I am considering...

by euamerican on Sun Jan 27th, 2008 at 09:05:58 AM EST
[ Parent ]

Re: Reasonable and proportioal?. (none / 1)

IIRC, Strasbourg only takes cases after the applicant has exhausted national legal means to rectify the situation. Or something like that.

by A swedish kind of death on Sun Jan 27th, 2008 at 03:25:47 PM EST
[ Parent ]

Re: Member States' criminal record exclusion polic (none / 1)

I doubt you will get much joy along this avenue of enquiry since article 1 of the directive explicitly lists the groups to which the directive applies:

Article 1

The provisions of this Directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services.

These provisions shall apply also to the spouse and to members of the family who come within the 1 OJ No 57, 26.8.1961, p. 1073/61. 2 OJ No 80, 13.12.1961, p. 1513/61. 3 OJ No 2, 15.1.1962, pp. 32/62 and 36/62. 4 OJ No 56, 4.4.1964, p. 845/64. 5 OJ No 134, 14.12.1962, p. 2861/62. 6 OJ No 56, 4.4.1964, p. 856/64. provisions of the regulations and directives adopted in this field in pursuance of the Treaty.

by det on Sun Jan 27th, 2008 at 07:29:29 AM EST

Re: Member States' criminal record exclusion polic (none / 1)

As an afterthought: Do you have the option of trying to get your record expunged?

There is no reason why "petty offenses" should follow you all your life.

by det on Sun Jan 27th, 2008 at 07:43:55 AM EST
[ Parent ]

Re: Member States' criminal record exclusion polic (none / 1)

The state (Wisconsin) has not changed its expungement laws since 1975 and applies only to juveniles. There was a push on last year in the Wisconsin Legislature to get this updated, which would have, in my case, allowed me to totally free of this...
I even contacted the sponsors of the bill and offered to speak at committee hearings, but the bill died.
Now, the only thing I can depend upon is my extensive education and volunteer service...

by euamerican on Sun Jan 27th, 2008 at 08:52:04 AM EST
[ Parent ]

Re: Member States' criminal record exclusion polic (none / 1)

Actually, this directive has been put to use with regard to Turkish workers (and has nothing to do with the Ankara Agreement) and other third country nationals.

There are a couple of other pieces of legislation that I could use, such for student permits.
Also, the other main themes to other pieces of legislation are "fairness" and "human dignity." I saw proposed legislation out there that would be useful upon refusal due to criminal record.
An appeal to a national court upon refusal could also bring up human rights and an explanation as to why disorderly conduct and vandalism in 1987 outweighs all the other good things I've done in my life.
Upon ANY refusal based only on criminal record (which any refusal would have to be based on) I do intend on writing the Commission, among other things...

Still, I will continue to look for work and school opportunities in the European Union despite my "record."

by euamerican on Sun Jan 27th, 2008 at 08:52:55 AM EST
[ Parent ]

Re: Member States' criminal record exclusion polic (none / 1)

Yes - and some of the legislation on common visa policies appeared to be useful in my case.
What is really lacking with these "scarlet letter" laws of the Member States' is fundamental fairness and human dignity, which are purported to be "European values."

Also, given that penology in Europe tends toward rehabilitation and reintergration of offenders, these types of policies in the area of visas and immigration simply don't fit which European values and ideas about criminal rehabilitation.

by euamerican on Sun Jan 27th, 2008 at 09:02:55 AM EST
[ Parent ]

Re: Member States' criminal record exclusion polic (none / 1)

Good luck!

by Metatone (metatone [a|t] gmail (dot) com) on Sun Jan 27th, 2008 at 03:31:10 PM EST
[ Parent ]

Re: Member States' criminal record exclusion polic (none / 1)

It is crap. And I am not surprised.

For one, the free movement is not quite there. But (probably) more importantly "Stop criminal foreigners!" is the kind of legislation suggestion that pops up from time to time, so I am not all that surprised that some countries has them on the books.

by A swedish kind of death on Sun Jan 27th, 2008 at 03:30:18 PM EST

Re: Member States' criminal record exclusion polic (none / 0)

When they say: "Stop criminal foreigners!" they are referring here to people that are currently criminals and involved in criminal actions, or are being sanctioned for criminal deed by a court.

The term "criminal" when attached to a person must end at some point, otherwise, we place people in a permanent category for which they are never regarded as whole or equal with other people. It is like being regarded as garbage - which never fits with the stated values of Europe.

Also ---> some immigrants comming to the European Union maybe criminals, it is just that they come from countries and communities that lack the same level of policing and justice standards as we know here in America.

by euamerican on Mon Jan 28th, 2008 at 07:33:25 AM EST
[ Parent ]

Re: Member States' criminal record exclusion polic (4.00 / 2)

What I suspect that they communicate to their voters is that they share their voters fear of hatred of foreigners (especially those with a darker skin color) and that crime comes from abroad. If only the right wing is voted in they could easily stop foreigners and crime, two birds with one stone so to say.

Of course, the real effect of general screening is not to keep people who live on crime out, as those generally has little or no hesitation of changing their identity in the eyes of the government.

The only people getting caught in such nets are those that has a conviction, but live their lives in general agreement with the laws and wants to travel, work and live in their real name. Like you.

Good luck getting it overturned.

by A swedish kind of death on Mon Jan 28th, 2008 at 05:42:27 PM EST
[ Parent ]

Member States' criminal record exclusion policies... | 13 comments (13 topical, 0 editorial, 0 hidden)

Go to: [ European Tribune Homepage : Top of page : Top of comments ]