Key facts of the case:
Reference for a preliminary ruling — Border control, asylum, immigration — Article 20 TFEU — Charter of Fundamental Rights of the European Union — Articles 7 and 24 — Directive 2008/115/EC — Articles 5 and 11 — Third‑country national subject to an entry ban — Application for residence for the purposes of family reunification with a Union citizen who has not exercised freedom of movement — Refusal to examine the application.
Outcome of the case:
In the light of the foregoing considerations, I consider that the reply to the questions referred by the Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings, Belgium) should be as follows:
1) By this request for a preliminary ruling the Court is primarily asked for guidance as to whether EU law precludes a national administrative practice of not examining applications for a residence permit by third-country nationals for the purposes of family reunification with an EU citizen, where that citizen has never exercised rights to freedom of movement under the Treaties. The administrative practice at issue is applied by the national competent authorities where the third-country national is subject to an entry ban under domestic law and is therefore obliged to leave not only Belgium (the State concerned), but the territory of the Member States as a whole. The Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings, Belgium) asks in particular whether that practice is compatible with Article 20 TFEU, interpreted in the light of the Charter of Fundamental Rights of the European Union ( 2 ) and Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals. ( 3 ) If Article 20 TFEU is engaged, the referring court asks what factors should be considered in assessing whether there is a relationship of dependency between the EU citizen and the third country national concerned.
2) Article 7 of the Charter provides that everyone has the right to respect for family life. ( 4 )
3. Article 24 is entitled ‘The rights of the child’. It states:
‘1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’
4. In accordance with Article 51(1), the provisions of the Charter are addressed to the Member States only when they are implementing EU law. ( 5 )
31) The applicants challenged the contested decisions before the referring court. They are of the view that the DVZ was wrong to refuse to examine the substance of their requests for family reunification on the ground that they are subject to valid entry bans. They maintain that such entry bans constitute an unlawful condition as to admissibility, and that applications for family reunification should be considered as an implicit request to withdraw or suspend the entry ban. ( 26 ) They argue that in accordance with the Return Directive the DVZ must take account of family life and the best interests of the child in examining applications for family reunification. They also point out that that directive does not state that an application for withdrawing or suspending an entry ban must be lodged from abroad in order to be valid. The applicants are of the view that the entry and stay of family members of Belgians may be refused only on grounds of public policy, national security or public health, and within the limits laid down by law. They submit that, contrary to Article 20 TFEU in particular as interpreted by the Court in Ruiz Zambrano, ( 27 ) their removal from Belgian territory and the territory of the European Union would mean that their dependent Belgian family members would not be able to exercise their rights as EU citizens in full. Last, the applicants argue that in taking the contested decisions the DVZ did not weigh up the interests in each case in the context of Article 8 of the ECHR and Article 7 of the Charter.
35) It does not appear from the contested decisions that the EU citizenship of the Belgian family members concerned was taken into account. Nor is it clear that the DVZ examined whether the entry bans were imposed for reasons of, inter alia, public policy or national security, or whether account was taken of the best interests of the children concerned and/or family life within the meaning of Articles 7 and 24 of the Charter.
36) In those circumstances, the referring court considers that the main question raised by the applications for family reunification in the cases at issue concerns the relationship between the entry bans imposed pursuant to the Return Directive and the protection of fundamental rights, in particular the right to respect for family life and the best interests of the child, as well as compliance with Article 20 TFEU. Accordingly, the following questions have been referred to the Court for a preliminary ruling:
‘(1) Should EU law, in particular Article 20 TFEU and Articles 5 and 11 of [the Return Directive], read in the light of Articles 7 and 24 of the Charter, be interpreted as precluding in certain circumstances a national practice whereby a residence application, lodged by a family member who is a third-country national in the context of family reunification with an EU citizen in the Member State where the EU citizen concerned lives and of which he is a national and who has not made use of his right of freedom of movement and establishment (a “static EU citizen”), is not considered — whether or not accompanied by a removal decision — for the sole reason that the family member and third-country national concerned is subject to a valid entry ban with a European dimension?
(a) Is it important when assessing such circumstances that there is a relationship of dependence between the family member and third-country national and the static Union citizen which goes further than a mere family tie? If so, what factors play a role in determining the existence of a relationship of dependence? Can guidance be drawn in that regard from the case-law relating to the existence of a family life under Article 8 of the ECHR and Article 7 of the Charter?
(b) With reference to minor children in particular, does Article 20 TFEU require more than a biological tie between the parent who is a third-country national and the child who is an EU citizen? Is it important in that regard that cohabitation is demonstrated or do emotional and financial ties suffice, such as a residential or visiting arrangement and the payment of maintenance? Can guidance be drawn in that regard from what was stated in the Court of Justice judgments [in Ogieriakhi; ( 29 )Singh and Others; ( 30 ) and O and Others. ( 31 ) See also in that regard Chavez-Vilchez and Others, currently pending before the Court ( 32 )]?
(c) Is the fact that family life came into being at a moment when the third-country national was already subject to an entry ban and thus aware of the fact that his stay in the Member State was illegal, important for the assessment of such circumstances? Could that fact be of relevance to combat the possible abuse of residence procedures in the context of family reunification?
(d) Is the fact that no legal remedy under Article 13(1) of [the Return Directive] was applied for against the decision to impose an entry ban or the fact that the appeal against the decision to impose an entry ban was rejected important for the assessment of such circumstances?
(e) Is the fact that the entry ban was imposed on grounds of public policy or on grounds of irregular stay a relevant factor? If so, must an examination also be undertaken of whether the third-country national concerned also represents a genuine, real and sufficiently serious threat to one of the fundamental interests of society? In that regard, can Articles 27 and 28 of [Directive 2004/38], which were transposed in Articles 43 and 45 of the Vreemdelingenwet, and the associated case-law of the Court of Justice on public policy, be applied by analogy to family members of static Union citizens? (See Rendón Marín and CS, currently pending before the Court). ( 33 )
(2) Should EU law, in particular Article 5 of [the Return Directive] and Articles 7 and 24 of the Charter, be interpreted as precluding a national practice whereby a valid entry ban can be invoked in order not to consider a subsequent application for family reunification with a static EU citizen, lodged in the territory of a Member State, without taking due account of family life and the best interests of the children involved, which were mentioned in that subsequent application for family reunification?
(3) Should EU law, in particular Article 5 of [the Return Directive] and Articles 7 and 24 of the Charter, be interpreted as precluding a national practice whereby a decision on removal is taken with regard to a third-country national who is already subject to a valid entry ban, without taking due account of family life and the best interests of the children involved, which were mentioned in a subsequent application for family reunification with a static EU citizen, lodged after the entry ban was imposed?
(4) Does Article 11(3) of the [Return Directive] imply that a third-country national must in principle always lodge an application for withdrawing or suspending a current and final entry ban outside the European Union or are there circumstances in which he can also lodge such an application in the European Union?
(a) Must the third and fourth subparagraphs of Article 11(3) of [the Return Directive] be understood to mean that the requirement laid down in the first subparagraph of Article 11(3) of [that directive], to the effect that the withdrawal or the suspension of the entry ban can be considered only if the third-country national concerned is able to demonstrate that he or she has left the territory in full compliance with a return decision, must plainly have been met in every individual case or in all categories of cases?
(b) Do Articles 5 and 11 of [the Return Directive] preclude an interpretation whereby a residence application in the context of family reunification with a static EU citizen, who has not exercised his right of freedom of movement and establishment, is regarded as an implicit (temporary) application to withdraw or suspend the valid and final entry ban, if it is shown that the residence conditions have not been met, the valid and final entry ban is revived?
(c) Is the fact that the obligation to lodge a request for withdrawing or suspending an entry ban in the country of origin may entail only a temporary separation between the third-country national and the static EU citizen a relevant factor? Are there nevertheless circumstances in which Articles 7 and 24 of the Charter preclude such a temporary separation?
(d) Is the fact that the only effect of the obligation to lodge a request for withdrawing or suspending an entry ban in the country of origin is that the EU citizen would, if necessary, only have to leave the territory of the European Union in its entirety for a limited time a relevant factor? Are there circumstances in which Article 20 TFEU nevertheless precludes the fact that the static EU citizen would have to leave the territory of the European Union in its entirety for a limited time?’
42) Is the practice applied in the present seven cases of refusing even to examine an application for family reunification so closely linked to the rights conferred on EU citizens under Article 20 TFEU (read in the light of Articles 7 and 24 of the Charter) that it falls within the scope of EU law?
53) Second, in so far as the administrative practice described by the referring court falls within the scope of EU law, it is necessary to take account of Articles 7 and 24 of the Charter. ( 46 ) The automaticity of the national practice at issue means that there is no scope for establishing in an individual case whether the EU citizen’s rights enshrined in those provisions are guaranteed. ( 47 )
58) I therefore consider that the reply to the issue of principle raised by the referring court in its first question is that the administrative practice at issue is incompatible with Article 20 TFEU read in the light of Articles 7 and 24 of the Charter.
60) The following detailed sub-questions are posed with a view to establishing the factors to be considered in any assessment concerning the relationship of dependency for the purposes of Article 20 TFEU, construed in the light of Article 7 of the Charter. ( 54 ) What are the relevant factors to take into account in relation to family life and minor children (Questions 1(a) and (b))? Are the following factors relevant to that assessment: whether there is a likelihood of abuse of process, namely whether family life came into being when the third-country national was already subject to an entry ban; whether steps were taken to challenge the entry ban before it became final; and whether the ban in question was imposed on grounds of public policy or on grounds of an irregular stay (Questions 1(c), (d) and (e))?
61) Article 7 of the Charter must be construed in the light of Article 8 of the ECHR. ( 55 ) The European Court of Human Rights (‘the Strasbourg Court’) has ruled that the essential object of Article 8 is to protect the individual concerned against arbitrary action by the public authorities, although that provision does not impose on a State a general obligation to authorise family reunification. ( 56 ) The assessment for the purposes of Article 8 of the ECHR involves balancing the competing interests of the individual concerned and the State. It is necessary to consider the consequences of the rupture of the family unit that would ensue if the third-country national family member is expelled. In so doing, account is taken of the length of time that the State concerned has tolerated the presence of that person on its territory: whether spouses (or cohabitees) have a common background, whether the third-country national is responsible for the day-to-day care of any children and the financial responsibilities and emotional ties within the family. ( 57 )
63) There is no corresponding right in the ECHR to Article 24 of the Charter. Although the Charter does not define the word ‘child’, it appears to be common ground that the offspring of Mr R.I., Ms M.J., Ms N.N.N, and Mr O.I.O. are children for the purposes of that provision. It is necessary to assess whether maintaining the relationship with the parent is in each child’s best interests. A child’s status as an EU citizen and the residence rights which flow therefrom do not of themselves guarantee a right of residence to his parents. Relevant factors include who has custody of the child and whether the child is legally, financially or emotionally dependent on the third-country national parent. ( 59 )
64) In response to the referring court’s question as to whether the Court’s case-law on Directive 2004/38 should apply, it seems to me that, as situations within the scope of that directive are also within the ambit of EU law, it may be possible to extrapolate certain principles, particularly those concerning the application of the Charter, which might apply by analogy. However, the specific criteria that are considered under that directive cannot be transposed to an assessment under Article 20 TFEU. The conditions that apply where an EU citizen wishes to obtain a right of residence in another Member State for a period longer than three months, pursuant to Article 7(1) of Directive 2004/38, and the derived right of residence which may extend to third-country national family members of that EU citizen by virtue of Article 7(2) of that directive are not directly relevant in any assessment for the purposes of Article 20 TFEU. ( 60 )
68) The referring court also seeks to ascertain whether Article 5 of the Return Directive read in the light of Articles 7 and 24 of the Charter precludes the administrative practice at issue in so far as these seven cases do not fall within the ambit of Article 20 TFEU (Question 2).
76) If the Court agrees with me that these seven cases fall within the scope of Article 20 TFEU and that the rules in the Return Directive should not form part of the assessment on the merits, it will be necessary for the competent authorities to determine in each case at issue whether there is in fact a relationship of dependency between the EU citizen and the third-country national family member. ( 75 ) The assessment for each applicant must be made with due regard for Articles 7 and 24 of the Charter.
81) I therefore conclude that EU law, in particular Article 20 TFEU read together with Articles 7 and 24 of the Charter, precludes a national practice whereby the competent authorities of a Member State automatically refuse to examine applications for residence within their territory made by a third-country national, who is the subject of a return decision and an associated entry ban, to join a family member who is an EU citizen residing in the Member State of which he has nationality and who has never exercised his rights to freedom of movement. The Return Directive does not provide a basis for justifying such a practice. Rather, there must be an assessment of the individual circumstances of the case at issue before the national authorities adopt a decision on the application for family reunification.
87) In the light of the foregoing considerations, I consider that the reply to the questions referred by the Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings, Belgium) should be as follows: