Key facts of the case:
Citizenship of the Union — Articles 20 TFEU and 21 TFEU — Directive 2004/38/EC — Right of residence of a national of a non-member State who has a criminal record — Father having sole custody of two minor children who are Union citizens — First child a national of the Member State of residence — Second child a national of a different Member State but having always resided in the Member State of residence — National legislation precluding the grant of a residence permit to the relative in the ascending line on account of his criminal record — Denial of the right of residence potentially entailing the removal of the minor children from the territory of the European Union — Lawfulness — Existence of a right of residence in accordance with the judgments in Zhu and Chen (C‑200/02, EU:C:2004:639) and Ruiz Zambrano (C‑34/09, EU:C:2011:124)
Outcome of the case
In light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Tribunal Supremo (Supreme Court) and the Upper Tribunal (Immigration and Asylum Chamber) London as follows.
In Case C‑165/14:
Article 21 TFEU and Directive 2004/38 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 precluding national legislation which requires the automatic refusal of a residence permit for a third-country national who is the parent of a minor child who is a citizen of the Union and a dependent of that parent and lives with that parent in the host Member State, when that parent has a criminal record.
It is contrary to Article 20 TFEU, as interpreted in the light of the judgments in Zhu and Chen (C‑200/02, EU:C:2004:639) and Ruiz Zambrano (C‑34/09, EU:C:2011:124), for that national legislation to require the automatic refusal of a residence permit for a third-country national, the parent of minor children who are citizens of the Union and of whom the parent has sole care and custody, on the grounds of the parent’s criminal record, when the consequence of such a refusal is that the children will have to leave the territory of the European Union.
In Case C‑304/2014:
It is, in principle, contrary to Article 20 TFEU for a Member State to expel from its territory to a non-member State a third-country national who is the parent of a child who is a national of that Member State and of whom the parent has sole care and custody, when to do so would deprive the child who is a citizen of the Union of genuine enjoyment of the substance of his or her rights as a citizen of the Union. Nevertheless, in exceptional circumstances, a Member State may adopt such a measure, provided that it:
It is for the referring court to determine whether that is the position in the case before it.