# C_2022451EN.01000901.xml

| 28.11.2022 | EN | Official Journal of the European Union | C 451/9 |
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28.11.2022

EN

Official Journal of the European Union

C 451/9

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Request for a preliminary ruling from the Szegedi Törvényszék (Hungary) lodged on 8 August 2022 — PQ v Országos Idegenrendészeti Főigazgatóság, Miniszterelnöki Kabinetirodát vezető miniszter

(Case C-528/22)

(2022/C 451/12)

Language of the case: Hungarian

Referring court

Szegedi Törvényszék

Parties to the main proceedings

Applicant: PQ

Defendants: Országos Idegenrendészeti Főigazgatóság, Miniszterelnöki Kabinetirodát vezető miniszter

Questions referred

| 1. | (a) | Must Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’), in conjunction with Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (‘Charter’) be interpreted as meaning that it precludes a practice whereby a Member State adopts a decision ordering the withdrawal of a residence permit which had previously been issued to a third country national — or refuses an application for an extension of the right of residence (in the present case, an application for a national permanent residence permit) — whose minor child and cohabiting partner are nationals of a Member State of the Union and live in that Member State, without previously examining whether the family member concerned, a third country national, can benefit from a derived right of residence under Article 20 TFEU? |
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1.

(a)

Must Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’), in conjunction with Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (‘Charter’) be interpreted as meaning that it precludes a practice whereby a Member State adopts a decision ordering the withdrawal of a residence permit which had previously been issued to a third country national — or refuses an application for an extension of the right of residence (in the present case, an application for a national permanent residence permit) — whose minor child and cohabiting partner are nationals of a Member State of the Union and live in that Member State, without previously examining whether the family member concerned, a third country national, can benefit from a derived right of residence under Article 20 TFEU?

| (b) | Must Article 20 TFEU, in conjunction with Articles 7 and 24 and 51(1) and 52(1) of the Charter, be interpreted as meaning that, where there is a derived right of residence under Article 20 TFEU, EU law requires that national administrative authorities and courts must also apply EU law when adopting an immigration decision concerning an application for extension of the right of residence (in this case an application for a national permanent residence permit) and when they apply the national security, public policy or public security exceptions on which that decision is based and, where it is shown that those grounds exist, when they examine the necessity and proportionality justifying a limitation on the right of residence? |
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(b)

Must Article 20 TFEU, in conjunction with Articles 7 and 24 and 51(1) and 52(1) of the Charter, be interpreted as meaning that, where there is a derived right of residence under Article 20 TFEU, EU law requires that national administrative authorities and courts must also apply EU law when adopting an immigration decision concerning an application for extension of the right of residence (in this case an application for a national permanent residence permit) and when they apply the national security, public policy or public security exceptions on which that decision is based and, where it is shown that those grounds exist, when they examine the necessity and proportionality justifying a limitation on the right of residence?

| 2. | Must Article 20 TFEU, in conjunction with Article 47 of the Charter — and also, in this specific case, with Articles 7 and 24 of the Charter –, be interpreted as meaning that an authority of a Member State which, on grounds of national security and/or public policy or public security, has adopted a decision ordering the withdrawal of a long-term residence permit which had previously been issued — or makes a decision on an application for extension of the right of residence –, and the specialised authority which has determined that the matter is confidential, must ensure there is a guarantee that in all circumstances the person concerned, who is a third-country national, and his or her legal representative, are entitled to know at least the essence of the confidential or classified information and data underpinning the decision which is based on those grounds and to use that information or those data in the proceedings concerning the decision, where the competent authority considers that such disclosure would be contrary to the interests of national security? |
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2.

Must Article 20 TFEU, in conjunction with Article 47 of the Charter — and also, in this specific case, with Articles 7 and 24 of the Charter –, be interpreted as meaning that an authority of a Member State which, on grounds of national security and/or public policy or public security, has adopted a decision ordering the withdrawal of a long-term residence permit which had previously been issued — or makes a decision on an application for extension of the right of residence –, and the specialised authority which has determined that the matter is confidential, must ensure there is a guarantee that in all circumstances the person concerned, who is a third-country national, and his or her legal representative, are entitled to know at least the essence of the confidential or classified information and data underpinning the decision which is based on those grounds and to use that information or those data in the proceedings concerning the decision, where the competent authority considers that such disclosure would be contrary to the interests of national security?

| 3. | If the answer is in the affirmative, what precisely must be understood by the ‘essence’ of the confidential grounds on which that decision is based, having regard to Articles 41 and 47 of the Charter? |
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3.

If the answer is in the affirmative, what precisely must be understood by the ‘essence’ of the confidential grounds on which that decision is based, having regard to Articles 41 and 47 of the Charter?

| 4. | Having regard to Article 47 of the Charter, must Article 20 TFEU be interpreted as meaning that, where a court of a Member State rules on the legality of the opinion of the specialised authority which is based on grounds relating to confidential or classified information and on the legality of the substantive immigration decision adopted on the basis of that opinion, it must have jurisdiction to examine the legality of the confidentiality (its necessity and proportionality) and, if it considers that the confidentiality is unlawful, to order, of its own motion, that the person concerned and his or her legal representative may know and use all the information on which the opinion and the decision issued by the administrative authorities are based, or alternatively, if it considers that the confidentiality claim is lawful, that the person concerned may know and use at least the essence of the confidential information in the immigration proceedings concerning him or her? |
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4.

Having regard to Article 47 of the Charter, must Article 20 TFEU be interpreted as meaning that, where a court of a Member State rules on the legality of the opinion of the specialised authority which is based on grounds relating to confidential or classified information and on the legality of the substantive immigration decision adopted on the basis of that opinion, it must have jurisdiction to examine the legality of the confidentiality (its necessity and proportionality) and, if it considers that the confidentiality is unlawful, to order, of its own motion, that the person concerned and his or her legal representative may know and use all the information on which the opinion and the decision issued by the administrative authorities are based, or alternatively, if it considers that the confidentiality claim is lawful, that the person concerned may know and use at least the essence of the confidential information in the immigration proceedings concerning him or her?

| 5. | Must Article 20 TFEU, in conjunction with Articles 7 and 24 and Article 51(1) and Article 52(1) of the Charter, be interpreted as precluding legislation of a Member State under which an immigration decision ordering the withdrawal of a long-term residence permit which had previously been issued or ruling on an application for extension of the right of residence, takes the form of a non-reasoned decision which:






  (i) | is based solely on automatic reference to a — likewise non-reasoned — binding and mandatory opinion by the specialised authority which identifies a danger or harm to national security, public policy or public security; and |
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5.

Must Article 20 TFEU, in conjunction with Articles 7 and 24 and Article 51(1) and Article 52(1) of the Charter, be interpreted as precluding legislation of a Member State under which an immigration decision ordering the withdrawal of a long-term residence permit which had previously been issued or ruling on an application for extension of the right of residence, takes the form of a non-reasoned decision which:

(i)

is based solely on automatic reference to a — likewise non-reasoned — binding and mandatory opinion by the specialised authority which identifies a danger or harm to national security, public policy or public security; and

| (ii) | has therefore been adopted without an in-depth examination of whether the grounds of national security, public policy or public order exist in the specific case in question, and without taking into account individual circumstances or the requirements of necessity and proportionality? |
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(ii)

has therefore been adopted without an in-depth examination of whether the grounds of national security, public policy or public order exist in the specific case in question, and without taking into account individual circumstances or the requirements of necessity and proportionality?

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