CJEU ̶ C-706/18 X v Belgium, 20 November 2019
| Country of Domestic Proceedings: | Belgium |
| Country of applicant: | Afghanistan |
| Court name: | Court of Justice of the European Union (Sixth Chamber) |
| Date of decision: | 20-11-2019 |
| Citation: | C‑706/18 |
Keywords:
| Keywords |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
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Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
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Sponsor
Description
"Broadly, a person or entity which undertakes a (legal, financial or personal) engagement, promise or pledge, on behalf of another. In the EU context of Family Reunification, a third-country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her." |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
The principle of effectiveness and the objectives of the Family Reunification Directive preclude domestic legislation that foresees the automatic issue of an entry and residence permit for family reunification on the sole ground that the time limit to decide on the application has expired without having established the substantial requirements for obtaining such a permit, e.g. family links.
Facts:
In October 2013, X, an Afghan national, submitted an application for a family reunification visa to join her alleged spouse, an Afghan national with refugee status in Belgium. The request was rejected because the matrimonial link between X and F.S.M. had not been established. An appeal against that decision was dismissed in July 2016. Subsequently, the Council of State, before which X brought an annulment action, set aside the latter judgment and remitted the case to the referring Court for new examination finding that
The referring Court decided to request a preliminary ruling on the possibility, under Directive 86/2003 (Family Reunification Directive), for domestic legislation to foresee the automatic granting of a residence permit for family reunification in case of expiry of the time limit for the issuance of a decision on the application.
Decision & reasoning:
The Court firstly noted that, according to Art. 1 of Directive 2003/86 (Family Reunification Directive) read in conjunction with Recital 6, the aim of this legal instrument is to lay down substantive conditions for the exercise of the right to family reunification by third-country nationals. The Court underlined that the Directive requires the application for family reunification to be accompanied by documentary evidence of the family relationship (Art. 5.2 paragraph 1); allows Member States to carry out interviews and other investigations that are deemed necessary (Art. 5.2 paragraph 2); and foresees the additional possibility to take into consideration informal types of evidence for refugees’ family reunification (Art. 11.2).
From the aforementioned provisions, the Court inferred that the competent national authorities are required, before authorising family reunification under the Directive, to establish the existence of the relevant family links between the sponsor and the third-country national in respect of whom the application for family reunification is lodged.
Therefore, the Belgian legislation impairs the effectiveness of the Family Reunification Directive and is contrary to its objectives in so far as it allows the automatic issue of a residence permit on the sole ground of the expiry of the time limit for a decision without having established the substantial requirements for obtaining such a permit.
Outcome:
Council Directive 2003/86/EC of 22 September 2003 on family reunification must be interpreted as precluding national legislation under which, in the absence of a decision being adopted within six months of the date on which the application for family reunification was lodged, the competent national authorities must automatically issue a residence permit to the applicant, without necessarily having to establish in advance that the latter actually meets the requirements for residence in the host Member State in accordance with EU law.
Observations/comments:
The judgment herein examined relates to another judgment delivered by the CJEU, C‑246/17 Diallo, 27 June 2018, EU:C:2018:499, where the same point of law was examined with regard to family reunification with EU citizens under Directive 2004/38/EC. In the latter decision, in line with the opinion of the Advocate General, the Court remarked the declaratory nature of the residence permit for family members of EU citizens, which merely certifies that a right already exists. From this principle, the Court logically inferred that such permit cannot give rise to a right which would not otherwise be present due to the lack of his substantive requirements.
In view of the above-mentioned sentence, the referring Court in the judgment summarised herein highlighted that a different conclusion concerning the Directive 86/2003 would lead to a more favourable treatment of family members of third-country nationals residing lawfully in the EU compared to family members of EU citizens.
This summary was written by Pietro Derossi, Italian lawyer working as researcher, reporter and editor for Migrantes Foundation on 'Vie di Fuga', a permanent observatory on refugees in Europe.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-540/03 Parliament v Council |
| CJEU - C‑246/17, Diallo |
| CJEU – C-635/17, E. v Staatssecretaris van Veiligheid en Justitie |