In a recent judgment [K.A. and Others v Belgium (C-82/16)], the European Court of Justice, confirms settled case-law and brings more clarity on (derived) residence rights of family members of “static EU citizens”.
The case in the main proceedings
The cases at issue concern EU citizens who have never exercised their rights to freedom of movement (“static EU citizens), and their family members, third-country nationals, who have lodged applications for family reunification. The applications were not examined by the Immigration Office, because the third-country nationals concerned are subject to an entry ban which is both valid and final, and the applications have not been lodged from outside the territory of the European Union.
Questions referred for a preliminary ruling
The request for a preliminary ruling made by the Council for asylum and immigration proceedings, concerns the interpretation of Article 20 TFEU, Articles 7 and 24 of the Charter of Fundamental Rights of the European Union and Articles 5 and 11 of Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals.
Judgment of the Court (Grand Chamber)
The ECJ strengthens the limits imposed on Member States in interpreting the key factor of the “substance of the rights” test determines derived rights of residence.
The key factor of the “substance of the rights” test and serves to limit its scope, is whether the decision not to grant the right of residence, would compel the EU national to leave the EU as a whole [McCarthy (2011)].
1 Article 20 TFEU -overriding value
The ECJ emphasises the overriding value of Article 20 TFEU.
Referring to settled case-law, the ECJ recalls that Article 20 TFEU precludes national measures, such as decisions refusing a right of residence to family members of Union citizens, which have the effect of depriving the latter of the genuine enjoyment of the substance of the rights conferred by virtue of their status.
In context, criteria such as the time when the relationship of dependency comes into being, the existence of an entry ban and whether the entry ban is final, the reasons for the entry ban, are irrelevant (unless the person concerned represents a genuine, present, and sufficiently serious threat to public policy).
Lastly, as a matter of principle, the right of residence in the host Member State, accorded by Article 20 TFEU to a third-country national who is a family member of a Union citizen:
· 1 does not presuppose that the third-country national already has some other right of residence in the territory of the Member State concerned.
· 2 the benefit of that right of residence must be accorded to a third-country national from the moment when the relationship of dependency to the Union citizen comes into being, and for as long as that relationship lasts.
2 The existence of a relationship of dependency capable of justifying a derived right of residence under Article 20 TFEU
Summarising settled case-law, the ECJ provides for a test of dependency, interpreting the “substance of the rights” test. Such a dependency must be “capable of justifying a derived right of residence under Article 20 TFEU”:
· where the Union citizen is an adult, only exceptional circumstances shall be considered, justifying that “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, all the specific circumstances must be considered in the best interests of the child, including the age, the 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”.
Only if the “test of dependency” justifies derived right of residence, a decision not to grant such a right, is deemed to compel the EU national to leave the EU as a whole (“substance of the rights” test).
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