What if Leonarda was (really) Italian?

In addition to its risky side, the management of the "Leona" affair could prove to be a thorn in the side of the European fabric of François Hollande. If the Italian nationality of Leonarda and some of her brothers and sisters were to be confirmed, the decision of the President of the Republic would not appear as a measure of "leniency". But as a non-application of European law: the return of Leonarda (Dobrani) to France is not an option left to the freedom of the President of the Republic or the police, it is a right. As well as for these parents. She has the right to enter French soil and could even obtain the right to reside there. As for getting lice in Leonarda's father's head on the pretext that he had taken some comfort with his declarations for the right of asylum or had committed some larceny or had cheated on public transport, these are not really facts that may justify a refusal of entry or stay according to European case law. All the more so if they have not been followed by criminal proceedings and convictions.

If the Italian nationality of Leonarda and some of her brothers and sisters were to be confirmed, the return of Leonarda (Dobrani) to France would indeed not be an option left to the freedom of the President of the Republic or the police, it is a right. As well as for these parents. Explanations

Does Leonarda have the right to return to France?

Yes. Once the papers proving their Italian nationality have been collected (birth certificate or/and identity document), they can travel freely in all the countries of the European Union. They can enter France and stay there for less than 3 months without proof.

Does Leonarda's family also have the right to return to France?

Yes without conditions for a stay of less than three months. Community law provides for facilitating the stay of family members who do not have European citizenship (nationality of an EU Member State). If a visa is necessary, it “must be issued free of charge and under the accelerated procedure”. And “all facilities” must be given to complete this formality (article 5 directive 2004).

Can we refuse the right of entry because the father lied?

The fact that the father lied by hiding the "Italian nationality" of his children cannot really be blamed. Especially if no proceedings are initiated against him. He did not usurp a right. He decided not to take advantage of it.

Can the right of entry be refused for another reason of public order?

Only a "  threat to public order could justify a refusal of stay. It's about a "real, current and sufficiently serious threat". Nothing in the file suggests that. No criminal proceedings are initiated or conviction pronounced against Leonarda's father. And the facts which could be reproached to him (not paying in public transport) seem minor and do not constitute as such a "threat to public order".. In any case, not to the point of justifying nor a refusal entry or expulsion. The courts, French and European, assess this condition very strictly. And reserve it for heavy aces: terrorism, crime, armed band, or repeated facts relating to delinquency....

Does Leonarda have to stay (after 3 months)?

Yes, but under conditions. You have to prove that you have “sufficient resources” and health insurance. These resources can come from France or abroad.

Do the parents have the right to stay?

Community law is quite complex. Directive 2004/38 normally grants the right of residence to parents/dependent children of a European citizen. When it is the child who is a European citizen, normally the parent therefore does not have the right to stay if the right is interpreted literally (judgment of 8 November 2012, Lida, C-40/11). But the judges also recognized that this analysis “would deprive the right of residence of (the child) of any useful effect, given that the enjoyment of the right of residence by a young child necessarily implies that this child has the right to be accompanied by the person actually providing care for him and, therefore, that this person is able to reside with him in the host Member State during this stay” (judgment of 8 November 2012, Lida, C-40/11 point 69 and judgment of 19 October 2004, Zhu and Chen, C-200/02 point 45).

Was the removal order legal?

If Leonarda's Italian nationality is confirmed, the measure is invalid, as it is based on erroneous facts.

The 2004 directive expressly provides that “a decision of expulsion cannot be taken against citizens of the Union, whatever their nationality, unless “the decision is based on serious grounds of public security » defined by the Member States, if they (…) are minors, unless removal is necessary in the interest of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989. One of the recitals of the directive is even more explicit. « The stronger the integration of Union citizens and their family members in the host Member State, the stronger the protection against expulsion should be. It is only in exceptional circumstances, for imperative reasons of public security, that an expulsion measure may be taken against citizens of the Union who have resided for many years in the territory of the Member State of welcome, especially when they were born there and lived there all their lives. Furthermore, such exceptional circumstances should also apply to removal measures taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, November 20, 1989.”

Can France be condemned for expulsion?

 Not under this provision. Because the administration did not know Leonarda's Italian nationality. But in any case, it raises more than a doubt about the way in which asylum application files are processed. Wouldn't further investigation have made it possible to detect that the children were not born in Kosovo or in Italy.

Nicolas Gros-Verheyde (in Brussels)