(Reference for a preliminary ruling — Directive 2004/38/EC — Directive 2008/115/EC — Right to move and reside freely in the territory of the Member States — Residence of a national of a Member State within the territory of another Member State despite a prohibition on entering that State — Lawfulness of a decision to withdraw a registration certificate and a further expulsion decision — Possibility to rely, exceptionally, on the unlawfulness of an earlier decision — Translation obligation)
SOURCE: Court of Justice of the European Union, Annual report 2017
In its judgment in Petrea delivered on 14 September 2017, the Court ruled on the application of Directive 2004/38 where a person who is the subject of an order excluding him from a Member State re-enters the Member State concerned in infringement of that order. In the instant case, the Greek authorities had issued an expulsion decision accompanied by an entry ban against a Romanian national in 2011 on the ground that he constituted a serious threat to public policy and public security. In 2013, the person concerned returned to Greece where he submitted an application for a certificate of registration as a Union citizen, which was granted to him. After discovering that the person concerned was still subject to an exclusion order, the Greek authorities decided to withdraw that certificate and, again, order his return to Romania. The person concerned challenged that decision.
The Court recalled that the grant of a residence permit to a national of a Member State is to be regarded not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of EU law. Only a declaratory character attaches, therefore, to such a registration certificate, with the result that the issue of that document cannot, in itself, give rise to a legitimate expectation on the part of the person concerned in his right to stay on the territory of the Member State concerned. Furthermore, Member States are able, under Article 27(1) of Directive 2004/38, to restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. According to the Court, it follows from the very nature of an exclusion order that it remains in force as long as it has not been lifted. Consequently, the mere finding that it has been infringed allows the competent authorities to adopt a new expulsion decision. The Court therefore held that Directive 2004/38 and the protection of legitimate expectations do not preclude the withdrawal of the person concerned’s residence permit or the taking of a further expulsion decision against him in the circumstances of the case.
The Court also ruled on whether the principle of effectiveness precludes a legal practice according to which a national of a Member State who is subject to a return order may not rely, in support of an action against that order, on the unlawfulness of the exclusion order previously adopted against him. The Court recalled that, in the absence of EU rules, the Member States are responsible for determining the rules of procedure governing court actions, but those rules must not be such as to render virtually impossible or excessively difficult the exercise of those rights. In the instant case, EU law in no way precludes national legislation from providing that it is not possible to rely, against an individual measure, such as a return decision, on the unlawfulness of an exclusion order which has become final, either because the time limit for bringing an action against that order expired or because the action brought against it was dismissed. However, the Court made clear that the person concerned must have had the possibility to contest effectively that order in good time in the light of the provisions of Directive 2004/38.
Lastly, as regards the question whether Article 30 of Directive 2004/38 requires a decision adopted under Article 27(1) of that directive to be notified to the person concerned in a language he understands, although he did not bring an application to that effect, the Court stated that the Member States are required to take every appropriate measure to ensure that the person concerned understands the content and implications of a decision restricting his rights of entry or residence for reasons of public policy, public security or public health. However, it does not require that decision to be notified to him in a language he understands or which it is reasonable to assume he understands, even though he did not bring an application to that effect.
(Reference for a preliminary ruling — Border control, asylum, immigration — Article 20 TFEU — Charter of Fundamental Rights of the European Union — Articles 7 and 24 — Directive 2008/115/EC — Articles 5 and 11 — Third-country national subject to an entry ban — Application for residence for the purposes of family reunification with a Union citizen who has not exercised freedom of movement — Refusal to examine the application)
SOURCE: Court of Justice of the European Union, Annual report 2018
On 8 May 2018, by its judgment in K.A. and Others (Family reunification in Belgium), the Court, sitting as the Grand Chamber, provided clarification on the derived right of residence on which third country national family members of a Union citizen who has never exercised his right to freedom of movement may rely on the basis of Article 20 TFEU. The main proceedings involved several third country nationals who had submitted applications for residence for the purposes of family reunification in their capacity as either a dependent relative in the descending line of a Belgian citizen, the parent of a Belgian minor or a lawfully cohabiting partner in a stable relationship with a Belgian citizen. Those applications had not been examined on the ground that the persons concerned had been the subject of an entry ban that remained in force, some of those decisions being justified by grounds relating to the existence of a threat to public policy.
The Court held, in the first place, that Article 20 TFEU precludes a practice of a Member State that consists in not examining such applications solely on the ground that the third country national concerned is the subject of an entry ban, without any examination of whether there exists a relationship of dependency between the 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 to accompany the family member to his country of origin and thereby be deprived of the genuine enjoyment of the substance of the rights conferred by that status.
In the second place, the Court explained the circumstances in which such a relationship of dependency may come into being. The Court made clear that, unlike minors (and in particular young children), an adult is, as a general rule, capable of living an independent existence apart from the members of his family. 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, is thus 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. On the other hand, where the Union citizen is a minor, the assessment of the existence of 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 might entail for that child’s equilibrium.
In the third place, the Court stated that in the context of the main action, some factors had no bearing on the grant of a derived right of residence to the third country national concerned. Thus, it is immaterial that the relationship of dependency relied on by the third country national comes into being after the imposition on him of an entry ban. It is also immaterial that the decision may have become final at the time when the third country national submits his application for residence for the purposes of family reunification, or that that decision may be justified by non-compliance with an obligation to return. Moreover, where such a decision is justified on public policy grounds, such grounds cannot automatically lead to a refusal to grant a derived right of residence. That refusal must be the result of a specific assessment of all the circumstances of the individual case, in the light of the principle of proportionality, the best interests of the child and fundamental rights, indicating that the person concerned represents a genuine, present and sufficiently serious threat to public policy.
In the fourth place, the Court stated that under Directive 2008/115, a return decision may not be 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 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.