**Case C-551/07**

**Deniz Sahin**

**v**

**Bundesminister für Inneres**

(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

(Article 104(3) of the Rules of Procedure – Directive 2004/38/EC – Articles 18 EC and 39 EC – Right to respect for family life – Right of residence of a national of a non-member country who entered the territory of a Member State as an asylum seeker
and subsequently married a national of another Member State)

Summary of the Order

1.        *Citizenship of the European Union – Right of free movement and residence in the territory of the Member States – Directive
2004/38 – Beneficiaries*

*(European Parliament and Council Directive 2004/38, Arts 3(1), 6(2), and 7(1)(d) and (2))*

2.        *Citizenship of the European Union – Right of free movement and residence in the territory of the Member States – Directive
2004/38 – Right of entry and residence of nationals of non-member countries who are family members of Community nationals*

*(European Parliament and Council Directive 2004/38, Arts 7(2), 9(1), and 10)*

1.        Articles 3(1), 6(2) and 7(1)(d) and (2) of Directive 2004/38 on the right of citizens of the Union and their family members
to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives
64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96 must be interpreted as applying also to family members
who arrived in the host Member State independently of the Union citizen and acquired the status of family member or started
to lead a family life with that Union citizen only after arriving in that State. In that regard, the fact that, at the time
the family member acquires that status or starts to lead a family life, he resides temporarily in the host Member State pursuant
to that State’s asylum laws has no bearing.

None of those provisions requires that the Union citizen must already have founded a family at the time when he moves to the
host Member State in order for his family members who are nationals of non-member countries to be able to enjoy the rights
established by Directive 2004/38, and, by providing that the family members of the Union citizen can join him in the host
Member State, the Community legislature, on the contrary, accepted the possibility of the Union citizen not founding a family
until after exercising his right of freedom of movement.

Furthermore, the words ‘family members [of Union citizens] who accompany ... them’ in Article 3(1) of that directive refer both
to the family members of a Union citizen who entered the host Member State with him and to those who reside with him in that
Member State, without it being necessary, in the latter case, to distinguish according to whether the nationals of non-member
countries entered that Member State before or after the Union citizen or before or after becoming his family members.

Moreover, from the time when the national of a non-member country who is a family member of a Union citizen derives rights
of entry and residence in the host Member State from the directive, that State may restrict that right only in compliance
with Articles 27 and 35 of Directive 2004/38. Compliance with Article 27 of that directive is required in particular where
the Member State wishes to penalise the national of a non-member country for entering into and/or residing in its territory
in breach of the national rules on immigration before becoming a family member of a Union citizen. However, a person who,
before acquiring the status of a family member of a Union citizen, was entitled to reside temporarily in the territory of
a Member State pursuant to the legislation of that Member State pending a decision on an asylum application, cannot have Article
27 of the directive invoked against him on that ground alone.

Finally, a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality
he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective
of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

(see paras 27-33, operative part 1)

2.        Articles 9(1) and 10 of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside
freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221, 68/360, 72/194,
73/148, 75/34, 75/35, 90/364, 90/365 and 93/96 preclude a national provision under which family members of a Union citizen
who are not nationals of a Member State, and who, in accordance with Community law, and in particular Article 7(2) of that
directive, have a right of residence, cannot be issued with a residence card of a family member of a Union citizen solely
because they are entitled temporarily to reside in the host Member State under that State’s asylum laws.

Article 10(2) of Directive 2004/38 lists exhaustively the documents which nationals of non-member countries who are family
members of a Union citizen may have to present to the host Member State in order to have a residence card issued. To deny
a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does
not possess, who accompanies or joins that Union citizen and who benefits from a right of residence under Article 7(2) of
that directive, the benefit of the residence card of a family member of a Union citizen solely because the person concerned
is only temporarily entitled to reside in the host Member State under that State’s asylum laws would amount to the addition
of a condition which is supplementary to those which are exhaustively listed in Article 10(2) of that directive.

(see paras 38-40, operative part 2)

ORDER OF THE COURT (Seventh Chamber)

19 December 2008 (*)

(Article 104(3) of the Rules of Procedure – Directive 2004/38/EC – Articles 18 EC and 39 EC – Right to respect for family life – Right of residence of a national of a non-member country who entered the territory of a Member State as an asylum seeker
and subsequently married a national of another Member State)

In Case C‐551/07,

REFERENCE for a preliminary ruling under Article 234 EC, from the Verwaltungsgerichtshof (Austria), made by decision of 22
November 2007, received at the Court on 11 December 2007, in the proceedings

**Deniz Sahin**

v

**Bundesminister für Inneres,**

THE COURT (Seventh Chamber),

composed of A. Ó Caoimh, President of Chamber, J.N. Cunha Rodrigues (Rapporteur) and J. Klučka, Judges,

Advocate General: J. Mazák,

Registrar: R. Grass,

the Court proposing to give its decision by reasoned order in accordance with the first subparagraph of Article 104(3) of
its Rules of Procedure,

after hearing the Advocate General,

makes the following

**Order**

1        This reference for a preliminary ruling concerns the interpretation of Directive 2004/38/EC of the European Parliament and
of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within
the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC,
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and – corrigenda – OJ 2004 L
229, p. 35; OJ 2005 L 30, p. 27; OJ 2005 L 197, p. 34, and OJ 2007 L 204, p. 28) (‘the directive’), of Articles 18 EC and
39 EC as well as of the fundamental right to respect for family life.

2        The reference was made in the context of proceedings between Mr Sahin, a Turkish national, and the Bundesminister für Inneres
(Federal Minister for the Interior) concerning the refusal to issue a permanent residence card.

**Legal context**

*Community legislation*

3        Under Article 1 of the directive:

‘This directive lays down:

(a)      the conditions governing the exercise of the right of free movement and residence within the territory of the Member States
by Union citizens and their family members;

(b)      the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c)      the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.’

4        Article 2 of the directive provides:

‘For the purposes of this directive:

(1)      “Union citizen” means any person having the nationality of a Member State;

(2)      “Family member” means:

(a)      the spouse;

(b)      the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member
State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance
with the conditions laid down in the relevant legislation of the host Member State;

(c)      the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point
(b);

(d)      the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

(3)      “Host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement
and residence.’

5        Article 3 of the directive states:

‘1.      This directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are
a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2.      Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host
Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a)      any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who,
in the country from which they have come, are dependants or members of the household of the Union citizen having the primary
right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b)      the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial
of entry or residence to these people.’

6        Article 6 of the directive states:

‘1.      Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months
without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2.      The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of
a Member State, accompanying or joining the Union citizen.’

7        Under Article 7(1) and (2) of the directive:

‘1.      All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than
three months if they:

(a)      are workers or self-employed persons in the host Member State; or

(b)      have sufficient resources for themselves and their family members not to become a burden on the social assistance system of
the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member
State; or

(c)      –       are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation
or administrative practice, for the principal purpose of following a course of study, including vocational training; and

–       have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means
of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their
family members not to become a burden on the social assistance system of the host Member State during their period of residence;
or

(d)      are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or
(c).

2.      The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State,
accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions
referred to in paragraph 1(a), (b) or (c).’

8        Article 9 of the directive is worded as follows:

‘1.      Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where
the planned period of residence is for more than three months.

2.      The deadline for submitting the residence card application may not be less than three months from the date of arrival.

3.      Failure to comply with the requirement to apply for a residence card may make the person concerned liable to proportionate
and non-discriminatory sanctions.’

9        Article 10 of the directive provides:

‘1.      The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by
the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the
date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

2.      For the residence card to be issued, Member States shall require presentation of the following documents:

(a)      a valid passport;

(b)      a document attesting to the existence of a family relationship or of a registered partnership;

(c)      the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member
State of the Union citizen whom they are accompanying or joining;

(d)      in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are
met;

...’

10      Article 27(1) and (2) provides:

‘1.      Subject to the provisions of this Chapter, Member States may 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. These
grounds shall not be invoked to serve economic ends.

2.      Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall
be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves
constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting
one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely
on considerations of general prevention shall not be accepted.’

11      Article 35 of the directive states:

‘Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this directive in
the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject
to the procedural safeguards provided for in Articles 30 and 31.’

*National legislation*

12      Paragraph 1(2) of the Law on establishment and residence (Niederlassungs- und Aufenthaltsgesetz, BGBl. I, 100/2005) (‘the
NAG’), in the version applicable to the main proceedings, provides:

‘This Federal Law does not apply to foreigners who:

1.      are entitled to stay [in Austria] pursuant to the Asylum Law 2005 [Asylgesetz 2005], BGBl. I No 100, or pursuant to earlier
asylum law provisions, unless otherwise provided for under this Federal Law.

...’

13      Paragraph 51 of the NAG provides:

‘Citizens of the EEA who exercise their right of free movement and reside in Austria for more than three months shall have
the right of establishment if they:

1.      are workers or self-employed persons in Austria;

2.      have sufficient sickness insurance for themselves and their family members and can prove that they have sufficient resources
to support themselves so as not to become a burden on the social assistance system during their period of establishment, or

3.      are following a course of study at a legally accredited private or public school or educational establishment and fulfil the
conditions under point 2 above.’

14      Paragraph 52 of that Law states:

‘Family members of citizens of the EEA enjoying a right of free movement (Paragraph 51) who are themselves citizens of the
EEA shall have a right of establishment if they:

1.      are a spouse;

...

and accompany or join the citizen of the EEA enjoying a right of free movement.’

15      Pursuant to Paragraph 54(1) of the NAG:

‘Family members of citizens of the EEA enjoying a right of free movement (Paragraph 51) who are not themselves citizens of
the EEA and who fulfil the conditions set out in Paragraph 52 points 1 to 3 shall have a right of establishment. Upon application,
such persons shall be issued with a permanent residence card valid for 10 years. That application must be submitted not later
than three months after their establishment.’

16      Pursuant to Paragraph 19 of the Asylum Law 1997 (Asylgesetz 1997, BGBl. I, 76/1997):

(1)      Asylum seekers who ... are present in Austria shall be entitled to stay temporarily unless their application should be rejected
on the ground of *res judicata* ...

...

(3)      Asylum seekers with a right to a temporary residence permit shall be provided at the authorities’ own motion with a document
bearing proof of that right. ...

...’

**The dispute in the main proceedings and the questions referred for a preliminary ruling**

17      It is apparent from the order for reference that Mr Sahin entered Austria on 15 June 2003 and filed an application for asylum
there on 3 October 2003. As no final decision on that application has been taken, Mr Sahin enjoys a temporary right of residence
under the Asylum Law 1997.

18      On 22 April 2006, Mr Sahin married a German national. According to the information provided by the referring court, they have
been living together as man and wife at least since 10 October 2003 and they have been living together with their child since
it was born on 19 July 2005.

19      By reference to his marriage, Mr Sahin applied on 29 May 2006 for a permanent residence card pursuant to Paragraph 54 of the
NAG. The Landeshauptmann (first minister) of the province of Lower Austria rejected that application under Paragraph 1(2),
point 1 of the NAG.

20      By decision of 14 March 2007, the Bundesminister für Inneres dismissed the appeal brought by Mr Sahin against the decision
of the Landeshauptmann of the province of Lower Austria. According to the Bundesminister für Inneres, the NAG, and therefore
Paragraph 54 thereof, does not apply to Mr Sahin because he enjoys a temporary right of residence under the laws on asylum.
In addition, Mr Sahin’s German spouse who, in his own words, ‘has been living in Austria for three years’ and is employed,
exercised her right to free movement at a time when Mr Sahin was already residing in Austria, with the result that the requirement
laid down in the last sentence of Paragraph 52 of the NAG, that the family member accompany or join the person exercising
the right to free movement, is not fulfilled. In that respect, the Bundesminister für Inneres also referred to Article 7(2)
of the directive.

21      Mr Sahin brought an action against the decision of the Bundesminister für Inneres before the Verwaltungsgerichtshof (Higher
Administrative Court), which decided to stay proceedings and to refer the following questions to the Court for a preliminary
ruling:

‘1.      (a)   Must Articles 3(1), 6(2) and 7(1)(d) and (2) of Directive 2004/38 ... be interpreted as meaning that they also apply to family
members within the meaning of Article 2(2) of the directive who arrived in the host Member State (Article 2(3) of the directive)
independently of the citizen of the Union and only became a family member or took up family life with the citizen of the Union
in that Member State?

(b)      If this is so, does it also depend on whether the family member was lawfully resident in the host Member State at the moment
he became a family member or took up family life? If the answer is in the affirmative, can residence be considered lawful
if the family member is entitled to stay solely on the basis of his status as an asylum seeker?

(c)      If the answer to Questions 1(a) and (b) is that a family member who arrived in the host Member State independently of the
citizen of the Union and became a family member or took up family life with the citizen of the Union only in that Member State
does not have a right of residence under the directive if he is entitled to stay “merely” on the basis of his status as an
asylum seeker: irrespective of the above, do Articles 18 EC and 39 EC, respectively, read in the light of the fundamental
right to respect for family life, give rise to a right to residence in circumstances in which the family member has been staying
in the host Member State for nearly four years and has been married for a year to a citizen of the Union with whom he has
been living for approximately three and a half years and with whom he has a 20-month-old child?

2.      Do Articles 9(1) and 10(1) of the directive preclude a national provision under which family members of a citizen of the Union
who are not nationals of a Member State and who, in accordance with Community law, and in particular Article 7(2) of the directive,
have a right of residence, cannot be issued with a residence card (“residence card of a family member of a Union citizen”)
solely because they are entitled (temporarily) to reside in the host Member State under that State’s asylum laws?’

**The questions referred for a preliminary ruling**

*Preliminary observations*

22      In accordance with the first subparagraph of Article 104(3) of the Rules of Procedure, where a question referred to the Court
for a preliminary ruling is identical to a question on which the Court has already ruled, or where the answer to such a question
may be clearly deduced from existing case-law, the Court may, after hearing the Advocate General, at any time give its decision
by reasoned order in which reference is made to its previous judgment or to the relevant case-law.

23      The Court considers that that is so in the present case.

*Question 1(a) and (b)*

24      By Question 1(a) and (b), the referring court asks, in essence, whether Articles 3(1), 6(2) and 7(1)(d) and (2) of the directive
must be interpreted as applying to family members who arrived in the host Member State independently of the Union citizen
and acquired the status of family member or started to lead a family life with that Union citizen only after arriving in that
State. The referring court would also like to know whether it depends on whether the family member was lawfully resident in
the host Member State at the time when he acquired the status of family member or started to lead a family life and, if so,
whether residence can be considered lawful if the family member is entitled to stay solely on the basis of his status as an
asylum seeker.

25      Article 3(1) of the directive provides that the directive is to apply to all Union citizens who move to or reside in a Member
State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 of the
directive who accompany or join them.

26      Articles 6 and 7 of the directive, which relate, respectively, to the right of residence for up to three months and to the
right of residence for more than three months, also require that the family members of a Union citizen who are not nationals
of a Member State ‘accompany’ or ‘join’ that citizen in the host Member State in order to enjoy a right of residence there.

27      In Case C-127/08 *Metock and Others* [2008] ECR I-0000, paragraphs 87 and 88, the Court held that none of those provisions requires that the Union citizen must
already have founded a family at the time when he moves to the host Member State in order for his family members who are nationals
of non-member countries to be able to enjoy the rights established by the directive, and that, by providing that the family
members of the Union citizen can join him in the host Member State, the Community legislature, on the contrary, accepted the
possibility of the Union citizen not founding a family until after exercising his right of freedom of movement.

28      Furthermore, at paragraph 93 of that judgment, the Court held that the words ‘family members [of Union citizens] who accompany
... them’ in Article 3(1) of the directive refer both to the family members of a Union citizen who entered the host Member State
with him and to those who reside with him in that Member State, without it being necessary, in the latter case, to distinguish
according to whether the nationals of non-member countries entered that Member State before or after the Union citizen or
before or after becoming his family members.

29      At paragraph 95 of *Metock and Others*, the Court stated that from the time when the national of a non-member country who is a family member of a Union citizen
derives rights of entry and residence in the host Member State from the directive, that State may restrict that right only
in compliance with Articles 27 and 35 of the directive.

30      It is clear from paragraph 96 of that judgment that compliance with Article 27 is required in particular where the Member
State wishes to penalise the national of a non-member country for entering into and/or residing in its territory in breach
of the national rules on immigration before becoming a family member of a Union citizen.

31      It is clear that a person such as Mr Sahin who, before acquiring the status of a family member of a Union citizen, was entitled
to reside temporarily in the territory of a Member State pursuant to the legislation of that Member State pending a decision
on an asylum application, cannot have Article 27 of the directive invoked against him on that ground alone.

32      As the Court held at paragraph 99 of *Metock and Others*, a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he
does not possess and who accompanies or joins that Union citizen benefits from the provisions of the directive, irrespective
of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

33      In view of those considerations, the answer to Question1(a) and (b) must be that Articles 3(1), 6(2) and 7(1)(d) and (2) of
the directive must be interpreted as applying also to family members who arrived in the host Member State independently of
the Union citizen and acquired the status of family member or started to lead a family life with that Union citizen only after
arriving in that State. In that regard, the fact that, at the time the family member acquires that status or starts to lead
a family life, he resides temporarily in the host Member State pursuant to that State’s asylum laws has no bearing.

*Question 1(c)*

34      In view of the answer to Question 1(a) and (b), it is not necessary to answer Question 1(c). Indeed, that question was referred
only in the event that the directive was to be interpreted as meaning that a family member in the situation of the applicant
in the main proceedings does not have a right of residence under the directive.

*Question 2*

35      As has been pointed out at paragraph 32 above, the Court held at paragraph 99 of *Metock and Others* that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality
he does not possess and who accompanies or joins that Union citizen benefits from the provisions of the directive.

36      As is clear from the answer to Question 1(a) and (b), a person in Mr Sahin’s situation enjoys a right of residence under Article
7(2) of the directive.

37      It is apparent from Articles 9(1) and 10(1) of the directive that the residence card is the document which evidences the right
of family members of a Union citizen, who are not nationals of a Member State, to reside for more than three months in a Member
State.

38      Article 10(2) of the directive lists exhaustively the documents which nationals of non-member countries who are family members
of a Union citizen may have to present to the host Member State in order to have a residence card issued (see, in particular,
*Metock and Others*, paragraph 53).

39      To deny a person in Mr Sahin’s situation the benefit of the residence card of a family member of a Union citizen solely because
the person concerned is only temporarily entitled to reside in the host Member State under that State’s asylum laws would
amount to the addition of a condition which is supplementary to those which are exhaustively listed in Article 10(2) of the
directive.

40      In those circumstances, the answer to Question 2 must be that Articles 9(1) and 10 of the directive preclude a national provision
under which family members of a Union citizen who are not nationals of a Member State, and who, in accordance with Community
law, and in particular Article 7(2) of the directive, have a right of residence, cannot be issued with a residence card of
a family member of a Union citizen solely because they are entitled temporarily to reside in the host Member State under that
State’s asylum laws.

**Costs**

41      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

1.      **Articles 3(1), 6(2) and 7(1)(d) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April
2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the
Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,
75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as applying also to family members who arrived
in the host Member State independently of the Union citizen and acquired the status of family member or started to lead a
family life with that Union citizen only after arriving in that State. In that regard, the fact that, at the time the family
member acquires that status or starts to lead a family life, he resides temporarily in the host Member State pursuant to that
State’s asylum laws has no bearing.**

2.      **Articles 9(1) and 10 of Directive 2004/38 preclude a national provision under which family members of a Union citizen who
are not nationals of a Member State, and who, in accordance with Community law, and in particular Article 7(2) of the directive,
have a right of residence, cannot be issued with a residence card of a family member of a Union citizen solely because they
are entitled temporarily to reside in the host Member State under that State’s asylum laws.**

[Signatures]

---

- Language of the case: German.