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CJEU Case C-82/16 / Opinion

K.A. and Others v Belgische Staat

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Decision date:

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:

  • European Union law, in particular Article 20 TFEU read together with Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, 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.
  • Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals does not provide a basis for justifying such a practice.
  • Rather, in such a case 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.