We (don’t) want you: protezione contro l’allontanamento del cittadino UE o del suo familiare e periodi di detenzione

The paper analyses the relationship between periods of imprisonment and the enhanced protection against deportation provided by Art. 28 of Directive 2004/38. It critically discusses the stance taken by the Court of Justice on some key aspects of this provision: the scope of the ascending scale of threats to public order and public security and the implications of the enforcement of a criminal conviction on the assessment of the criteria for benefiting from protection against deportation. The author contends that the case law of the Court of Justice undermines the principle of proportionality and deprives of substance one of the key purposes of punishment, i.e., offenders’ rehabilitation. The analysis proposes two ways forward, namely greater reliance on the Member States’ obligations of means to enhance the offenders’ chances of rehabilitation and a renewed set of criteria to assess the proportionality of a domestic deportation measure.