The home secretary, Jacqui Smith, has recently announced new rules to exclude those who foster extremism or hate from entering the UK. Through the new rules the Government wants to create “a presumption in favour of exclusion in respect of all those who have engaged in fostering, encouraging or spreading extremism and hatred.”

Jacqui Smith has said that the Government will “Introduce changes that will allow me to exclude from the UK nationals of the European Economic Area, and their families, before they travel to this country where they constitute a threat to public security or policy.”

The Immigration (European Economic Areas) Regulations 2006 implemented in domestic law Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

It seems that Jacqui Smith believes that she has powers to introduce amendments to the Immigration (European Economic Areas) Regulations 2006 in order to exclude EEA citizens. Tony Blair also promised to the House of Commons that in future “those who are convicted of a serious criminal offence are deported automatically.” However, according to the Immigration Regulations 2006 anyone cannot be deported to the EEA countries just because they have got a criminal record.

The EC Treaty confers to each citizen of the European Union the right to free movement as a fundamental and personal right. However, this right might be restricted by Member States on grounds of public policy, public security or public health. EU citizens or members of their family may be expelled from the host Member State on grounds of public policy, public security or public health. However, the ECJ has been interpreting the concept of public policy and public security strictly so that the Member States cannot determine its scope unilaterally.

The EU legislation provides for safeguards and guarantees in order to limit the discretionary power of Member States in this respect and to ensure that the fundamental right to free movement is protected.

The ECJ has been stressed that Member States must indicated on case-by-case basis the exact reasons for imposing restrictions on the right of entry and the right of residence of EU citizens and their family members.

EEA nationals and their family members can be excluded on public policy, public security and public health grounds. However, measures based of public order or public security reasons must comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned. Such measures must take into account the personal conduct of the person and on the basis of “a present and serious threat affecting one of the fundamental interests of society.” Therefore, previous criminal convictions do not automatically justify these measures. According to the Directive “Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”

The expulsion decisions must take into account the level of integration of an EU citizen into the host country, the length residence, age, state of health, family and economic situation and the links with the country of origin. The Directive increases the level of protection against expulsion on grounds of public policy and public security of Union citizens and their family members who have acquired a right of permanent residence and restricts the possibility of expulsion of Union citizens who have resided in a Member State for the previous ten years or who are minors to cases based on imperative grounds of public security.

The Directive also strengthens the procedural guarantees against expulsion. The persons concerned must have access to judicial review or administrative redress procedures in the host Member State to appeal against any decision taken against them on the grounds of public policy, public security or public health.

Any attempt by the British Government to limit the impact of this directive through domestic legislation is likely to be struck down by the European Commission and by the European Court of Justice.

The UK Government might have to seek the European commission’s views on the planned amendments to the Immigration (European Economic Areas) Regulations 2006. The Commission keeps track of the measures taken by the authorities in the Member States to incorporate EU law into their national law and it takes action when they fail to do so properly. In fact, the Commission has been stressing that “the provisions of the Directive are unconditional and sufficiently clear and may relied upon by an individual against the State where that State has failed to implement the directive in national law by the period prescribed or where it has failed to implement the directive correctly.”

The European Commission will take action against the UK if it believes that the UK laws would not meet the aims set by the Directive 2004/38/EC. The Commission has powers of its own to try to bring the infringement to an end and it may refer the case to the European Court of Justice.