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CJEU - Joined Cases C 356/11 and C 357/11 / Opinion

O, S v Maahanmuuttovirasto, and Maahanmuuttovirasto v L

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
27/09/2012
Key facts of the case:
 

Citizenship of the Union — Right to family reunification — Applicability of the principles set out in Ruiz Zambrano — Sponsor who is the parent of a child with Union citizenship born of a previous marriage — Right of residence of the sponsor’s new spouse, a third-country national — Refusal on the basis of a lack of sufficient resources — Right to respect for family life — Obligation to take into consideration the interests of minor children.

Outcome of the case:

In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions submitted by the Korkein hallinto-oikeus:

(1) Article 20 TFEU must be interpreted as not precluding a Member State from refusing a third-country national a residence permit because of lack of sufficient means of subsistence, where that national intends to reside with his spouse, a third-country national residing lawfully in that Member State, and a child who is a citizen of the Union, born of his spouse’s first marriage.

That provision should not be interpreted differently where the third-country national lives together with his spouse and the spouse’s child in the territory of the Member State.

Nor should that provision be interpreted differently where the third-country national has returned to his country of origin, but has, with his spouse, a child who is a third-country national, who resides in the Member State concerned and is in the joint custody of both parents.

(2) However, it is for the national court to examine whether, in the implementation of the criteria set out in Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, and within the limits of the Member State’s margin of appreciation in the area, the competent national authority carried out a fair and balanced assessment of the competing interests at issue, seeking, in particular, to respect the family life of the parties concerned and to determine the best solution for the child. In that context, the national court must carry out an in-depth examination of the family situation and take due account of the particular circumstances of the case, whether they are of a factual, emotional, psychological, or financial nature.