Key facts of the case:
- This request for a preliminary ruling, made by the Cour administrative (Luxembourg) (Higher Administrative Court, Luxembourg), relates to the interpretation of Article 20 TFEU, potentially undertaken in the light of fundamental rights, although it is primarily concerned with the satisfaction of the conditions laid down by Directive 2004/38/EC. (3)
- The question referred to the Court for a preliminary ruling has been raised in the context of a dispute between Ms Alokpa, a Togolese national, and her two children, born in Luxembourg and holding French nationality, and the Ministre du Travail, de l’Emploi et de l’Immigration (Minister for Labour, Employment and Immigration) of the Grand Duchy of Luxembourg concerning the latter’s decision, first, to refuse to grant Ms Alokpa a right of residence in Luxembourg and, second, ordering her to leave the country.
Results (sanctions) and key consequences of the case:
A minor child who is a citizen of the European Union and dependent on a non‑dependent direct relative in the ascending line who is the primary carer of that child may be able to rely on the provisions 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, to allow that relative, a national of a non-Member State, to have the benefit of a derived right of residence in the territory of a Member State of which that child is not a national. It is for the referring court to establish whether the conditions laid down in Article 7(1)(b) of that directive are satisfied, taking into account the personal situation of the Union citizens concerned, including ? as the case may be ? future or potential resources stemming from an offer of employment made to that direct relative in the ascending line, such as the offer at issue in the dispute in the main proceedings, having regard to the limits imposed by national procedural rules and the requirements which follow from the principles of equivalence and effectiveness.
A decision of a Member State ordering a national of a non-Member State who is a direct relative in the ascending line and the primary carer of minor children, who are citizens of the Union and nationals of another Member State, to leave its territory cannot be regarded as being capable of requiring those citizens to leave the territory of the Union as a whole, thus depriving them of the effective enjoyment of the substance of the rights conferred by their status, since those citizens enjoy an unconditional right to enter and reside in the territory of the Member State of which they are nationals, a right which requires ? in order to remain effective ? that a derived right of residence in the latter Member State be granted to that direct relative in the ascending line as their sole carer and the person with whom they have had a shared family life since their birth.