CJEU - C-356/11 and C-357/11, O, S v Maahanmuuttovirasto, and Maahanmuuttovirasto v L

Facts:

Ms. S, a national of Ghana lived in Finland on the basis of a permanent residence permit and had previously married and divorced a Finnish national, with whom she had a child, born in 2003. The child has Finnish nationality. In 2008 Ms. S married a national of Cote d’Ivoire, Mr. O and in 2009 a child of the marriage was born in Finland. The child has Ghanaian nationality and the spouses have joint custody of the child. The Maahanmuuttovirasto refused Mr. O’s application for a residence permit on the ground that he did not have secure means of subsistence.  Following some Court proceedings the Korkein hallinto-oikeus (Supreme Administrative Court) submitted a preliminary reference to the CJEU. The case of Ms. L, a national of Algeria is similar in that there is a child from a previous marriage with dual Finnish and Algerian nationality and Ms L is currently married to Mr. M, a national of Algeria, with whom she has a child of Algerian nationality. Mr. M was returned to his country of origin in October 2006  by the Finnish authorities. The Maahanmuuttovirasto rejected Mr. M’s application for a residence permit on the ground that he did not have a secure means of subsistence in Finland.

Decision & reasoning:

The central question in these proceedings is whether the provisions of European Union law on citizenship of the Union must be interpreted as precluding a Member State from refusing to grant a third country national a residence permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is Union citizen, and with the child of their own marriage, who is also a third country national. The referring Court also asked whether the fact that the applicant for a residence permit lives together with his spouse, is not the biological father of the child who is a Union citizen, and does not have custody of the child may affect the interpretation to be given to the provisions on citizenship of the Union.

The Court has held that Art. 20 TFEU precludes national measures, including refusals to grant rights of residence to family members of a Union citizen, which have the effect of denying the Union citizens the genuine enjoyment of the substance of the rights conferred by their status (Para. 45). In this case it is for the referring Court to establish whether the refusal of the applications for residence permits in the circumstances of this case constitutes a denial of the genuine enjoyment of the substance of the rights conferred by their status. Relevant factors include the fact that the children are part of reconstituted families and that a decision by Ms S and Ms L to leave Europe would have the effect of depriving those Union citizens of all contact with their biological fathers. Secondly, if they remain on the territory this would have the effect of harming the relationship of the other children, who are third country nationals, with their biological fathers. The Court clearly held that the application of the Ruiz Zambrano principles is not limited to situations where there is a blood relationship between the third country national for whom a right of residence is sought and the Union citizen who is a minor (Para. 55).

The Court went on to address the question of a right of residence within the framework of the right to the protection of family life and considered the rules within Directive 2003/86. It found that the application of that Directive cannot be excluded solely because one of the parents of a minor third country national is also the parent of a Union citizen, born of a previous marriage (Para. 69). As regards Art. 7(1)(c) of that Directive the Court held that this provision must be interpreted and applied in light of Articles 7 and 24(2) and (3) of the Charter of Fundamental Rights which require Member States to examine the applications for reunification in the best interests of the child concerned and with a view to promoting family life (Para 80). Para 81: It is for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned.

Outcome:

The Court ruled that: Article 20 TFEU must be interpreted as not precluding a Member State from refusing to grant a third country national a residence permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is a Union citizen, and with the child of their own marriage, who is also a third country national, provided that such a refusal does not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union, that being for the referring court to ascertain.

Applications for residence permits on the basis of family reunification such as those at issue in the main proceedings are covered by Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Article 7(1)(c) of that directive must be interpreted as meaning that, while Member States have the faculty of requiring proof that the sponsor has stable and regular resources which are sufficient to maintain himself and the members of his family, that faculty must be exercised in the light of Articles 7 and 24(2) and (3) of the Charter of Fundamental Rights of the European Union, which require the Member States to examine applications for family reunification in the interests of the children concerned and also with a view to promoting family life, and avoiding any undermining of the objective and the effectiveness of that directive. It is for the referring court to ascertain whether the decisions refusing residence permits at issue in the main proceedings were taken in compliance with those requirements.

Observations/comments:

The following governments intervened in this case: the Danish, German, Italian, Dutch and Polish governments.