Key facts of the case:
- Can a third-country national’s right of residence in a Member State be derived from the Union citizenship of a child of which he is not the parent but the step-parent?
- That is, in essence, the question posed by the Korkein hallinto-oikeus (Finland) in two references for a preliminary ruling.
- Those references are made in the context of disputes between the Maahanmuuttovirasto (Immigration Office) and S, a Ghanaian national (C‑356/11), and L, an Algerian national (C‑357/11). (2) The sponsors in both cases seek a residence permit for their respective spouses, O and M, both third country nationals, (3) on the basis of the right to family reunification laid down by Directive 2003/86/EC. (4) The Maahanmuuttovirasto rejected the applications on the ground that the applicants did not have sufficient means of subsistence for the purposes of their stay on Finnish territory.
- The referring court questions the conformity of such decisions with the principles set out by the Court of Justice in Ruiz Zambrano (5) and its interpretation of the provisions of the TFEU relating to citizenship of the European Union. Both S and L have sole custody of a child, born of a previous marriage, who is a Union citizen. Consequently, the referring court poses the questions as to whether, given the circumstances of the concerned parties’ family situations, the Maahanmuuttovirasto was not required to grant the residence permits to the applicants in order to avoid a situation in which the children, in the sole custody of the sponsors, would be forced to leave the territory of the European Union and therefore deprived of the enjoyment of the rights conferred upon them as Union citizens.
- The referring court’s questions therefore call on the Court to specify the scope of the principles set out in Ruiz Zambrano, in the particular context of a reconstituted family in which the applicant has no parental or financial responsibility over the child who is a Union citizen.
Results (sanctions) and key consequences of the case:
- 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.
- 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.