# C_2008064EN.01001901.xml

| 8.3.2008 | EN | Official Journal of the European Union | C 64/19 |
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Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 11 December 2007 — Deniz Sahin v Bundesminister für Inneres

(Case C-551/07)

(2008/C 64/28)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Deniz Sahin

Defendant: Bundesminister für Inneres

Questions referred

| 1. | (a)
Must 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( 1 ) — ‘the Directive’ — 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? | (a) | Must 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( 1 ) — ‘the Directive’ — 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? |
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| (a) | Must 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( 1 ) — ‘the Directive’ — 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’) only because they are entitled (temporarily) to reside in the host Member State under that State's asylum laws? |
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( 1 )  OJ L 158, p. 77.

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