CJEU - C 40/11 / Opinion Yoshikazu Iida v Stadt Ulm AG

Key facts of the case:

The present request for a preliminary ruling concerns the question whether and, if so, to what extent and under what conditions, third-country nationals enjoy a right of residence under European Union law by virtue of their family and personal relationship with Union citizens who are minors. The request is thus connected with the problem under consideration in the Dereci (2) and Ruiz Zambrano (3) judgments concerning the extent to which the rights of residence enjoyed by Union citizens extend to third-country nationals. In this respect, the present case displays a peculiarity in that the third-country national is not applying for a right of residence in the Member State in which his daughter, the Union citizen, is living.

Results (sanctions) and key consequences of the case:

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC does not confer on a parent who has custody rights and is a third-country national a right, in order to maintain a personal relationship and direct parental contact on a regular basis, to remain in the Member State of origin of his child, who is a Union citizen, to be documented by a residence card of a member of the family of a Union citizen, if the child, exercising his or her right of free movement, moves from there to another Member State. In the light of the fundamental rights guaranteed under Article 6(1) and (3) TEU, and in particular those enshrined in Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, a parent who has custody rights and is a third-country national may, in order to maintain a personal relationship and direct parental contact on a regular basis, have a right of residence in the Member State of origin of his child who is a Union citizen under Articles 20 TFEU and 21 TFEU, if the child, exercising his or her right of free movement, has moved from there to another Member State. In order for such a right of residence to exist, the denial thereof must have a restrictive effect on the child’s right of free movement and must be regarded as constituting a disproportionate interference with fundamental rights in the light of the abovementioned fundamental rights. This is a matter which must be assessed by the referring court. There is no right under European Union law to the issue of a residence card for members of the family of a Union citizen as documentary proof of this right of residence.

Paragraphs referring to EU Charter: 

 

51-56, 71-88