Key facts of the case:
- The present reference for a preliminary ruling provides the Court with the opportunity, for the first time, to rule on the scope of the provisions of Article 3(2) of 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. (2)
- The reference has been made in a dispute between, on the one hand, Muhammad Sazzadur Rahman, Fazly Rabby Islam and Mohibullah Rahman, who are Bangladeshi nationals, and, on the other, the Secretary of State for the Home Department, following the refusal by the latter to issue to the former residence permits for the United Kingdom as dependent members of the family of a national of a Member State of the European Economic Area (EEA).
Results (sanctions) and key consequences of the case:
- Article 3(2) of 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 must be interpreted as requiring the Member States to adopt the necessary measures to facilitate entry and residence in their territory for all persons coming within the scope of that provision, which means that the persons concerned have the possibility to obtain a right of entry and residence following an extensive examination of their application, having regard to their personal circumstances and, in the event of a refusal, a sufficiently justified decision which is open to judicial redress procedures. That provision does not require the Member States to recognise an automatic right of entry and residence for other family members who are nationals of a non-member country and who meet the requirements of Article 10(2)(e) of Directive 2004/38.
- The primary law of the European Union, in particular its provisions on Union citizenship and protection of private and family life, and Article 3(2) of Directive 2004/38 preclude a Member State from refusing a national of a non-member country who comes within the scope of that provision residence in its territory, where that national wishes to reside with a member of his family who is a Union citizen, where such refusal has the effect of unjustifiably impeding the exercise of the right of the Union citizen concerned to move and reside freely within the territory of the Member States or causes a disproportionate impairment of his right to respect for private and family life, which must be ascertained by the referring court.
- Article 3(2) of Directive 2004/38 confers on other family members who comply with the conditions laid down in that provision the right to rely on it before a national court in order, in particular, to disapply the particular requirements which would restrict its scope.
- Article 3(2)(a) of Directive 2004/38 must be interpreted to the effect that:
- it precludes national legislation which limits the scope of that provision to other family members who resided in the same State as the Union national before the Union national came to the host Member State;
- the notion of ‘dependant’ does not imply that dependency existed shortly before the Union citizen moved to the host Member State, and
- it does not preclude national legislation which makes entry and residence for a national of a non-member country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.