(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.