Article 7 - Respect for private and family life
Article 24 - The rights of the child
Key facts of the case:
Request for a preliminary ruling from the Förvaltningsrätten i Malmö – Migrationsdomstolen.
Reference for a preliminary ruling – Area of freedom, security and justice – Border controls, asylum and immigration – Convention implementing the Schengen Agreement – Consultation of the Schengen Information System (SIS) in the examination of an application for a residence permit made by a third-country national for whom an alert has been issued in the SIS for the purposes of refusing entry – Article 25(1) – Schengen Borders Code – Entry conditions for third-country nationals – Article 6(1) and (5) – Charter of Fundamental Rights of the European Union – Article 7 and Article 24(2) – Refusal to renew a residence permit for the purposes of family reunification on the ground that the applicant’s identity cannot be established with certainty.
Outcome of the case:
On those grounds, the Court (Fourth Chamber) hereby rules:
Article 25(1) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen (Luxembourg) on 19 June 1990 and entering into force on 26 March 1995, as amended by Regulation (EU) No 265/2010 of the European Parliament and of the Council of 25 March 2010, must be interpreted as not precluding legislation of a Member State which permits the issue, extension or renewal of a residence permit for the purposes of family reunification, requested from within the territory of that Member State by a third-country national who is the subject of an alert in the Schengen Information System for the purposes of refusing entry in the Schengen area and whose identity has not been able to be established by means of a valid travel document, only where the interests of the Member State which issued the alert and which has first been consulted have been taken into account and where the residence permit is issued, extended or renewed only for ‘substantive reasons’ within the meaning of that provision;
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) and, in particular, Article 6(1)(a) thereof, must be interpreted as meaning that it does not apply to a third-country national who is in such a situation.
35) As the Advocate General observed, in essence, in point 66 of his Opinion, the grounds relating to respect for the fundamental rights of the third-country national concerned, in particular the right to respect for family life and the rights of the child, as enshrined in Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, the observance of which is binding on the Member States when the CISA is implemented, which forms an integral part of EU law by virtue of Protocol No 19 on the Schengen acquis, is an integral part of EU law, annexed to the Treaties (OJ 2010 C 83, p. 290), are likely to fall within the scope of the concept of ‘substantive reasons’, within the meaning of that provision.