CJEU - Case C-82/16 K.A. and Others, 8 May 2018

Facts:

The main proceedings concern a number of third-country nationals residing in Belgium who were ordered to return to their respective countries and banned from entering Belgium, some of them on grounds of a threat to public policy. Subsequently, the individuals submitted applications for a residence permit, on the basis of their status as either a dependent relative in the descending line of a Belgian citizen, the parent of a minor Belgian child, or a lawfully cohabiting partner in a stable relationship with a Belgian citizen. Those applications were not examined by the competent Belgian authorities on the ground that the individuals concerned were persons who were subject to an entry ban that remained in force. Under Belgian law, once an entry ban has become final it cannot be extinguished or temporarily suspended unless an application for its withdrawal or suspension is lodged outside Belgium. In this regard, the referring court referred several questions to the CJEU for a preliminary ruling.

Decision & reasoning:

As preliminary observations, the CJEU recalled that as the Belgian citizens concerned in the main proceedings had never exercised their right to freedom of movement within the EU, their third-country national family members cannot claim a derived right of residence either under the Citizens’ Right Directive or under Article 21 TFEU.

The CJEU found that the Returns Directive does not preclude a practice of a Member State that consists of not examining an application for residence for the purposes of family reunification solely on the ground that the third-country national concerned is subject to a ban on entering the territory of that Member State. However, the CJEU recalled that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status.

While the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals, a right of residence must be granted to a third-country national who is a family member of a Union citizen if, as a consequence of refusal of such right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus depriving him of the substance of the rights conferred by his/her status as a EU citizen. This is only the case, however, if there exists a relationship of dependency of such a nature that the EU citizen would be compelled to accompany the third-country national concerned. If this is the case, the obligation imposed on the third-country national to leave the territory of the EU in order to request the withdrawal or suspension of the entry ban is also liable to undermine the effectiveness of Article 20 TFEU.

It follows, therefore, that national authorities cannot refuse to examine an application for a right of residence for the purposes of family reunification solely on the ground that the third-country national is the subject of a ban on entering that Member State. It is the duty of that authority, on the contrary, to examine that application and to assess whether there exists a relationship of dependency of such a nature that a derived right of residence must, as a general rule, be accorded to that third-country national under Article 20 TFEU. In such circumstances, the Member State concerned must withdraw or, at the least, suspend the return decision and the entry ban to which that third-country national is subject.

The CJEU has clarified the degree of dependence capable of justifying a derived right of residence under Article 20 TFEU. It emphasised that, unlike minors and a fortiori minors who are young children, an adult is, as a general rule, capable of living an independent existence apart from the members of his family. In the case of adults, a relationship of dependency, capable of giving rise to a derived right of residence under Article 20 TFEU, is conceivable only in exceptional cases, where, having regard to all the relevant circumstances, there could be no form of separation of the individual concerned from the member of his family on whom he is dependent.

In the case of children, the competent authorities must take primary account of the right to respect for family life (Article 7 CFR EU) and the obligation to take into consideration the best interests of the child (Article 24(2) CFR EU). Account must be taken of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium. Co-habitation is not a prerequisite but it is one of the relevant factors to be taken into account. Similarly, the existence of a family link, whether natural or legal, cannot be sufficient ground to justify the grant of a derived right of residence.

The CJEU also ruled that it is immaterial that the relationship of dependency came into being after the imposition of the entry ban. It is also immaterial that the entry ban has become final at the time the third-country national concerned submits his or her application for residence for the purposes of family reunification.

With regard to the justification for derogating from the right of residence of EU citizens or members of their families, the CJEU ruled that the concepts of “public policy” and “public security” must be interpreted strictly.

First, “public policy” presupposes, in any event, the existence of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Secondly, as regards the concept of “public security”, that concept covers both the internal security of a Member State and its external security, and, consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a threat to military interests.

Therefore, where the refusal of a right of residence is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of, inter alia, criminal offences committed by a third-country national, such a refusal is compatible with EU law even if its effect is that the Union citizen who is a family member of that third-country national is compelled to leave the territory of the European Union.

However, this conclusion cannot be drawn automatically solely on the basis of the criminal record of the person concerned and is subject to a specific assessment of the current and relevant circumstances of the case,  in the light of the principle of proportionality, of the child’s best interests and of fundamental rights.

That assessment must therefore take account, in particular, of the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of any children at issue and their state of health, as well as their economic and family situation.

It follows that when the competent national authority is contemplating the adoption of a return decision, it must necessarily observe the obligations imposed by Article 5 of the Returns Directive and hear the person concerned on that subject. In that regard, the person concerned must cooperate with the competent national authority when he is heard in order to provide the authority with all the relevant information on his personal and family situation and, in particular, information which might justify a return decision not being issued. In other words, Member States are precluded from adopting a return decision without taking into account the relevant details of the family life of the third-country national concerned which that person has put forward, in support of an application for residence for the purposes of family reunification, in order to oppose the adoption of such a decision, even when that third-country national has previously been the subject of a return decision, accompanied by an entry ban.

Outcome:

In light of the above, the Grand Chamber of the CJEU ruled:

1.      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, in particular Articles 5 and 11 thereof, must be interpreted as not precluding a practice of a Member State that consists in not examining an application for residence for the purposes of family reunification, submitted on its territory by a third-country national family member of a Union citizen who is a national of that Member State and who has never exercised his or her right to freedom of movement, solely on the ground that that third-country national is the subject of a ban on entering the territory of that Member State.

2.      Article 20 TFEU must be interpreted as meaning that:-

–        a practice of a Member State that consists in not examining such an application solely on the ground stated above, without any examination of whether there exists a relationship of dependency between that Union citizen and that third-country national of such a nature that, in the event of a refusal to grant a derived right of residence to the third-country national, the Union citizen would, in practice, be compelled to leave the territory of the European Union as a whole and thereby be deprived of the genuine enjoyment of the substance of the rights conferred by that status, is precluded;

–        where the Union citizen is an adult, a relationship of dependency, capable of justifying the grant, to the third-country national concerned, of a derived right of residence under Article 20 TFEU, is conceivable only in exceptional cases, where, in the light of all the relevant circumstances, any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible;

–        where the Union citizen is a minor, the assessment of the existence of such a relationship of dependency must be based on consideration, in the best interests of the child, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties to each of his parents, and the risks which separation from the third-country national parent might entail for that child’s equilibrium; the existence of a family link with that third-country national, whether natural or legal, is not sufficient, and cohabitation with that third-country national is not necessary. in order to establish such a relationship of dependency;

–        it is immaterial that the relationship of dependency relied on by a third-country national in support of his application for residence for the purposes of family reunification comes into being after the imposition on him of an entry ban;

–        it is immaterial that the entry ban imposed on the third-country national has become final at the time when he submits his application for residence for the purposes of family reunification; and

–        it is immaterial that an entry ban, imposed on a third-country national who has submitted an application for residence for the purposes of family reunification, may be justified by non-compliance with an obligation to return; where such a ban is justified on public policy grounds, such grounds may permit a refusal to grant that third-country national a derived right of residence under Article 20 TFEU only if it is apparent from a specific assessment of all the circumstances of the individual case, in the light of the principle of proportionality, the best interests of any child or children concerned and fundamental rights, that the person concerned represents a genuine, present, and sufficiently serious threat to public policy.

3.      Article 5 of Directive 2008/115 must be interpreted as precluding a national practice pursuant to which a return decision is adopted with respect to a third-country national, who has previously been the subject of a return decision, accompanied by an entry ban that remains in force, without any account being taken of the details of his or her family life, and in particular the interests of a minor child of that third-country national, referred to in an application for residence for the purposes of family reunification submitted after the adoption of such an entry ban, unless such details could have been provided earlier by the person concerned.

Observations/comments:

This judgment is generally in line with the Opinion of Advocate General Sharpston, delivered in October 2017.

Relevant articles:

• S. Progin-Theuerkauf, K.A. and Others – the Zambrano story continues, European Law Blog, available here.