Opinion of the Advocate General — ECLI:EU:C:2024:221
Date: 2024-03-07
Language of the case: Spanish
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-63/23 – 1 
Case C-63/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
6 February 2023 
Referring court: 
Juzgado Contencioso-Administrativo n.º 5 de Barcelona (Spain) 
Date of the decision to refer: 
9 January 2023 
Applicants: 
Sagrario 
Joaquín 
Prudencio 
Defendant: 
Subdelegación del Gobierno en Barcelona 
  
Subject matter of the main proceedings 
Family reunification – Refusal to grant or renew a residence permit as a reunited 
family member – Unlawful residence – Particularly difficult circumstances – Prior 
assessment of personal circumstances – Child’s best interests – Autonomous 
residence permit 
Subject matter and legal basis for the reference 
Request for a preliminary ruling – Article 267 TFEU – Compatibility of a national 
provision with Directive 2003/86/EC – Article 15(3) – Article 17 – Refusal to 
grant or renew a residence permit as a reunited family member – Unlawful 
residence – Particularly difficult circumstances – Prior assessment of personal 
circumstances – Autonomous residence permit – Articles 7 and 24, Article 33(1) 
and Article 47 of the Charter of Fundamental Rights of the European Union – 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-63/23 
 
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Child’s best interests – Article 6(1) and Article 8(1) and (2) of the European 
Convention on Human Rights 
Questions referred for a preliminary ruling 
1. Must Article 15(3), in fine, and Article 17 of Directive 2003/86, when they 
refer to ‘particularly difficult circumstances’, be understood as automatically 
including all circumstances involving a minor and/or circumstances that are 
similar to those provided for in Article 15? 
2. Is national legislation that does not provide for the grant of an autonomous 
residence permit, which ensures that reunited family members are no longer 
unlawful residents in the event of such particularly difficult circumstances, 
compatible with Article 15(3), in fine, and Article 17 of Directive 2003/86? 
3. Can Article 15(3), in fine, and Article 17 of Directive 2003/86 be interpreted 
as meaning that that right to an autonomous permit arises when the reunited 
family is left without a residence permit for reasons beyond their control? 
4. Is national legislation that does not provide for the necessary and mandatory 
assessment of the circumstances set out in Article 17 of Directive 2003/86 before 
a refusal to renew the residence permit of reunited family members compatible 
with Article 15(3) and Article 17 of that directive? 
5. Is national legislation that does not provide, as a step that must be taken 
before the refusal to grant or renew a residence permit as a reunited family 
member, for a specific procedure for hearing minors, where the grant or renewal 
of the sponsor’s residence permit has been refused, compatible with Article 15(3) 
and Article 17 of Directive 2003/86, Article 6(1) and Article 8(1) and (2) of the 
European Convention on Human Rights, and Articles 47, 24, 7 and Article 33(1) 
of the Charter of Fundamental Rights of the European Union? 
6. Is national legislation that does not provide, as a step that must be taken 
before the refusal to grant or renew a residence permit as a reunited spouse, where 
the grant or renewal of the sponsor’s residence permit has been refused, for that 
spouse to be able to plead the circumstances provided for in Article 17 of 
Directive 2003/86 in order to request that he or she be granted an option to remain 
resident without interruption vis-à-vis his or her previous residence status 
compatible with Article 15(3) and Article 17 of Directive 2003/86, Article 6(1) 
and Article 8(1) and (2) of the European Convention on Human Rights, and 
Articles 47, 24, 7 and Article 33(1) of the Charter of Fundamental Rights of the 
European Union? 
SAGRARIO 
 
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Provisions of European Union law relied on 
Judgment of the Court of Justice of the European Union of 27 June 2006, 
Parliament v Council, C-540/03, EU:C:2006:429 
Judgment of the Court of Justice of the European Union of 14 March 2019, Y.Z. 
and Others (Fraud in family reunification), C-557/17, EU:C:2019:203 
Recitals 2 and 11 of Directive 2003/86/EC 
Article 5(5), Article 15(3), Article 16(3) and Articles 17 and 18 of Directive 
2003/86/EC 
Article 24(1) and (2) of the Charter of Fundamental Rights of the European Union 
Article 6 of the European Convention on the Exercise of Children’s Rights 
Provisions of national law relied on 
Article 19 of Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de 
los extranjeros en España y su integración social (Organic Law 4/2000 of 
11 January on the rights and freedoms of foreign nationals in Spain and their 
social integration), as amended by Organic Law 2/2009 (‘Organic Law 4/2000’). 
That article governs the effects of family reunification in special circumstances, 
including residence and work permits, and separate residence permits for spouses 
and children. 
First additional provision, paragraph 4, of Real Decreto 557/2011, de 20 de abril, 
por el que se aprueba el Reglamento de la Ley Orgánica 4/2000, sobre derechos y 
libertades de los extranjeros en España y su integración social (Royal Decree 
557/2011 of 20 April 2011 approving the Regulations made under Organic Law 
4/2000 on the rights and freedoms of foreign nationals in Spain and their social 
integration), as amended by Organic Law 2/2009 (‘Royal Decree 557/2011’). That 
provision makes it possible to issue temporary residence and/or work permits 
where justified by economic, social or employment circumstances and in cases of 
particular importance that have not been determined [by legislation], and to grant 
individual temporary residence permits in the event of exceptional circumstance 
not provided for in those regulations. 
Article 58(3) of Royal Decree 557/2011. That article governs the validity of the 
residence permit for reunited family members in accordance with the sponsor’s 
residence permit. 
Article 59 of Royal Decree 557/2011. That article governs the residence of 
reunited family members independently of the residence of the sponsor and, inter 
alia, the conditions, circumstances and duration of that residence. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-63/23 
 
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Article 61 of Royal Decree 557/2011. That article governs the renewal of 
residence permits for the purposes of family reunification and, inter alia, the 
formalities and conditions for the application [for a residence permit], the duration 
of the permit, the requirements for obtaining the permit in relation to the sponsor 
and the reunified family member, the supporting documents required and other 
information to be assessed by the authorities for the renewal of the residence 
permit. 
Brief summary of the facts and the main proceedings 
1 The applicant and her two minor children held a residence permit for the purposes 
of family reunification after having been reunited with her husband and their 
father, respectively. 
2 On 22 April 2021, all family members submitted an application for a long-term 
residence permit. By decision of the Subdelegación del Gobierno en Barcelona 
(Representation of the Spanish State in Barcelona) of 27 May 2021, the sponsor 
was refused a residence permit due to the existence of a criminal record. Next, by 
decision of the Representation of the Spanish State in Barcelona of 22 June 2021, 
the applicant and her two minor children were refused the long-term residence 
permit because the sponsor did not have a work and/or residence permit, which 
was contrary to the requirements of Article 61(3)(b)(1) of Royal Decree 557/2011. 
Essential arguments of the parties in the main proceedings 
3 The parties’ arguments are not set out in the order for reference. 
Brief summary of the reasoning in the request for a preliminary ruling 
4 Article 15 of Directive 2003/86/EC (‘the Directive’) provides for the possibility of 
granting an autonomous residence permit to reunited family members in certain 
cases. Article 16(3) of the Directive provides that Member States may withdraw 
or refuse to renew the residence permit of a family member in certain 
circumstances and in accordance with Article 15. Those provisions were 
reproduced in Article 59 of Royal Decree 557/2011, paragraph 3 of which states 
that residence permits are to be granted without interruption. 
5 Article 15 of the Directive, to which Article 16(3) refers, adds that the ‘Member 
States shall lay down provisions ensuring the granting of an autonomous residence 
permit in the event of particularly difficult circumstances’. Those difficult 
circumstances have not been determined by Spanish legislation. 
6 The first additional provision of Royal Decree 557/2011, in paragraph 4, provides 
for the grant of residence permits in exceptional cases not provided for in the 
Regulations made under Organic Law 4/2000. However, it does not appear that 
SAGRARIO 
 
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those provisions are compatible with the Directive, since they introduce a 
discretionary decision [in which those provisions are capable] of broad 
interpretation which does not preclude automatic decision-making – prohibited by 
the CJEU – and which, at the same time, falls outside the jurisdiction of the 
administrative body belonging to the Administración periférica del Estado 
(Peripheral State Administration [– the administration of the central State’s 
regional representation]), since it comes under the jurisdiction of the central State 
administration. 
7 By its case-law, the CJEU requires Member States to assess the personal 
circumstances of the persons concerned and prohibits them from making decisions 
automatically on measures to withdraw residence permits. Thus, for example, the 
judgment of 27 June 2006, Parliament v Council (C-540/03, EU:C:2006:429), by 
obliging national authorities to take into account the particular circumstances of 
each case, pursuant to Article 5(5) and Article 17 of the Directive, ensures the 
compatibility of the provisions of the Directive with fundamental rights. 
8 However, Spanish legislation does not establish any procedure whereby the 
persons concerned may rely on the personal circumstances referred to in 
Article 17 of the Directive and which, at the same time, gives the minor child a 
prior hearing, in accordance with Article 6 of the European Convention on the 
Exercise of Children’s Rights. Therefore, decisions are made without taking into 
account the personal situation of reunited persons, generally minors and women, 
who instantly find themselves to be unlawful residents. 
9 In the referring court’s view, reunited family members who have lost their 
residence permit for reasons beyond their control could be regarded as being in 
particularly difficult circumstances. This is particularly so in the case of minors or 
persons who are in a situation of structural discrimination in the society from 
which they come, as is the case for women from certain countries where that 
gender is unprotected. 
10 Since Article 15(3) uses an imperative formulation – ‘shall lay down’ – the 
referring court considers that national law should determine ‘particularly difficult 
circumstances’. In so doing, it would be possible to apply Article 15(3) of the 
Directive to cases where residence permits are lost due to reasons beyond the 
control of the reunited family members, as is the case in the main proceedings. 
Moreover, the loss of the residence permit would, in any event, take place after an 
assessment of the personal and family situation of the reunited family member, as 
required by Article 17 of the Directive. 
11 In the referring court’s view, the Spanish authorities merely refused the residence 
permit without assessing the nature and solidity of the person’s family 
relationships, the duration of the residence and the existence of family, cultural 
and social ties with the country where they reside and the country of origin, which 
is contrary to EU law.