Opinion of the Advocate General — ECLI:EU:C:2017:821
Date: 2017-10-26
Language of the case: Dutch
Subject matter: Asylum policy;Citizenship of the Union;Justice and home affairs;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights;Border checks
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Belgium

Summary — Judgment of the Court (Grand Chamber), 8 May 2018 1. Judicial proceedings — Oral part of the procedure — Reopening — Obligation to reopen the oral part of the procedure in order to allow the parties to submit observations on points of law raised in the Advocate General’s Opinion — None) (Art. 252, second para., TFEU; Rules of Procedure of the Court of Justice, Art. 83) 2. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States – Union citizen who has not exercised his freedom of movement – Derived right of residence of Union citizen’s third‑country national family members – National subject to a return decision accompanied by an entry ban, submitting an application for residence for the purposes of family reunification –National practice of not examining such an application, on the ground of the entry ban — Not permissible (Art. 20 TFEU) 3. Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 – Return decision accompanied by an entry ban, imposed on a third-country national family member of a Union citizen who has not exercised his freedom of movement – Submission of an application for residence for the purposes of family reunification – National practice of not examining such an application, on the ground of the entry ban — Lawfulness (European Parliament and Council Directive 2008/115, Arts 5 and 11) 4. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States – Union citizen who has not exercised his freedom of movement – Derived right of residence of Union citizen’s third‑country national family members — Conditions for granting – Existence of a relationship of dependency that could compel that Union citizen to leave the territory of the Union if the right of residence were refused — Criteria for assessment (Art. 20 TFEU; Charter of Fundamental Rights of the European Union, Arts 7 and 24(2)) 5. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States – Union citizen who has not exercised his freedom of movement – Derived right of residence of Union citizen’s third‑country national family members – National subject to a return decision accompanied by an entry ban, submitting an application for residence for the purposes of family reunification — Conditions for granting – Existence of a relationship of dependency that could compel that Union citizen to leave the territory of the Union if the right of residence were refused – Time when relationship of dependency came into being – No effect on right of residence (Art. 20 TFEU) 6. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States – Union citizen who has not exercised his freedom of movement – Derived right of residence of Union citizen’s third‑country national family members – National subject to a return decision accompanied by an entry ban, submitting an application for residence for the purposes of family reunification — Conditions for granting – Existence of a relationship of dependency that could compel that Union citizen to leave the territory of the Union if the right of residence were refused – Whether entry ban has become final when application for residence is made – No effect on right of residence (Art. 20 TFEU) 7. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States – Union citizen who has not exercised his freedom of movement – Derived right of residence of Union citizen’s third‑country national family members – National subject to a return decision accompanied by an entry ban, submitting an application for residence for the purposes of family reunification — Conditions for granting – Existence of a relationship of dependency that could compel a Union citizen to leave the territory of the Union if the right of residence were refused – Reasons for entry ban – No effect on right of residence — Limit – Specific assessment of a genuine, present, and sufficiently serious threat to public policy (Art. 20 TFEU; Charter of Fundamental Rights of the European Union, Arts 7 and 24(2)) 8. Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 – Return decision accompanied by an entry ban, imposed on a third-country national family member of a Union citizen who has not exercised his freedom of movement – Submission of an application for residence for the purposes of family reunification – National practice to adopt a new return decision without any account being taken of details of family life mentioned in application for residence — Not permissible — Limit – Details which could be provided earlier by the person concerned (European Parliament and Council Directive 2008/115, Art. 5) 1. See the text of the judgment. (see paras 34-36) 2. First, it should at the outset be noted that the situations at issue in the main proceedings all involve the refusal of the competent national authority to examine an application for residence for the purposes of family reunification, submitted in Belgium by a third-country national family member of a Belgian citizen, as either a relative in the descending line, parent or lawfully cohabiting partner of a Belgian citizen, on the ground that the third-country national concerned was subject to an entry ban. The referring court states that, under national law, the applicants in the main proceedings must, as a general rule, submit, in their country of origin, a request for the withdrawal or suspension of the entry ban imposed on them before they can validly submit an application for residence for the purposes of family reunification. Article 20 TFEU must be interpreted as meaning that a practice of a Member State that consists in not examining such an application solely on the ground stated above, without any examination of whether there exists a relationship of dependency between that Union citizen and that third-country national of such a nature that, in the event of a refusal to grant a derived right of residence to the third-country national, the Union citizen would, in practice, be compelled to leave the territory of the European Union as a whole and thereby be deprived of the genuine enjoyment of the substance of the rights conferred by that status, is precluded. The objective pursued by Article 20 TFEU would be defeated if a third‑country national were compelled to leave, for an indefinite period, the territory of the European Union in order to obtain a withdrawal or suspension of the ban on entering that territory to which he is subject without it having been ascertained, first, that there does not exist, between that third-country national and a Union citizen who is a family member, a relationship of dependency of such a nature that the Union citizen would be compelled to accompany the third-country national to his or her country of origin, even though, precisely because of that relationship of dependency, a derived right of residence ought, as a general rule, to be granted to that third‑country national under Article 20 TFEU. In this connection, the Court has previously held that there are very specific situations in which, despite the fact that secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus depriving him of the genuine enjoyment of the substance of the rights conferred by that status (see, to that effect, judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraphs 43 and 44, and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 63). However, a refusal to grant a right of residence to a third-country national is liable to undermine the effectiveness of Union citizenship only if there exists, between that third-country national and the Union citizen who is a family member, a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the third-country national concerned and to leave the territory of the European Union as a whole (see, to that effect, judgments of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraphs 65 to 67; of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 56; and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 69). (see paras 39, 51, 52, 58, 62, operative part 2) 3. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Articles 5 and 11 thereof, must be interpreted as not precluding a practice of a Member State that consists in not examining an application for residence for the purposes of family reunification, submitted on its territory by a third-country national family member of a Union citizen who is a national of that Member State and who has never exercised his or her right to freedom of movement, solely on the ground that that third-country national is the subject of a ban on entering the territory of that Member State. In particular, there is no provision in that directive that lays down rules concerning how to deal with an application for residence for the purposes of family reunification that is submitted, as in the cases in the main proceedings, after the adoption of a return decision accompanied by an entry ban. Further, the refusal to examine such an application in the circumstances described in paragraph 27 of this judgment is not liable to impede the application of the return procedure laid down by that directive. (see paras 45, 46, operative part 1) 4. Article 20 TFEU must be interpreted as meaning that: – where the Union citizen is an adult, a relationship of dependency, capable of justifying the grant, to the third-country national concerned, of a derived right of residence under Article 20 TFEU, is conceivable only in exceptional cases, where, in the light of all the relevant circumstances, 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, the assessment of the existence of such a relationship of dependency must be based on consideration, in the best interests of the child, of all the specific circumstances, including the age of the child, the child’s 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. More particularly, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the European Union if the child’s third-country national parent were to be refused a right of residence in the Member State concerned, it is the task of the referring court to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of the Charter (judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 70). The fact that the other parent, where that parent is a Union citizen, is actually able — and willing — to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. On the other hand, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the European Union, is not sufficient in itself to support the view that the Union citizen will be compelled to leave the territory of the European Union if such a right is not granted (see, to that effect, judgments of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 68, and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 52). (see paras 71, 72, 74, 76, operative part 2) 5. Article 20 TFEU must be interpreted as meaning that it is immaterial that the relationship of dependency relied on by a third-country national in support of his application for residence for the purposes of family reunification comes into being after the imposition on him of an entry ban. In that regard, it must be borne in mind that, first, the right of residence accorded to third-country national family members of a Union citizen, under Article 20 TFEU, is a derived right of residence, the aim of which is to protect the right of a Union citizen to move and reside freely, and, second, it is the relationship of dependency between that Union citizen and the third‑country national family member, within the meaning set out in paragraph 52 of this judgment, that explains why that third-country national has to be accorded a right of residence in the territory of the Member State of which that Union citizen is a national. That being the case, the effectiveness of Union citizenship would be compromised if an application for residence for the purposes of family reunification were to be automatically rejected where such a relationship of dependency between a Union citizen and a third-country national family member came into being at a time when the third-country national was already the subject of a return decision accompanied by an entry ban and was therefore aware that he was staying illegally. In such circumstances, the existence of such a relationship of dependency between a Union citizen and third-country national, could not, by definition, have been taken into account when the return decision, accompanied by an entry ban, was adopted with respect to the third-country national. (see points 78, 79, 81, operative part 2) 6. Article 20 TFEU must be interpreted as meaning that it is immaterial that the entry ban imposed on the third-country national has become final at the time when he submits his application for residence for the purposes of family reunification. In that regard, as is apparent from paragraphs 57 to 61 of this judgment, in order to ensure that Article 20 TFEU has practical effect, it is necessary to withdraw or suspend such an entry ban, even when that ban has become final, if there exists, between that third-country national and a Union citizen who is a member of his family, such a relationship of dependency as to justify according to that third-country national a derived right of residence, under Article 20, in the territory of the Member State concerned. (see paras 83, 84, operative part 2) 7. Article 20 TFEU must be interpreted as meaning that it is immaterial that an entry ban, imposed on a third-country national who has submitted an application for residence for the purposes of family reunification, may be justified by non-compliance with an obligation to return; where such a ban is justified on public policy grounds, such grounds may permit a refusal to grant that third-country national a derived right of residence under Article 20 TFEU only if it is apparent from a specific assessment of all the circumstances of the individual case, in the light of the principle of proportionality, the best interests of any child or children concerned and fundamental rights, that the person concerned represents a genuine, present, and sufficiently serious threat to public policy. As regards, first, non-compliance with the obligation to return, it must be stated that it is immaterial that the entry ban may have been imposed on such a ground. For the reasons set out in paragraphs 53 to 62 and in paragraphs 79 and 80 of this judgment, a Member State may not refuse to examine an application for residence for the purposes of family reunification, submitted on its territory by a third-country national, on the sole ground that, after he has failed to comply with an obligation to return, that national is staying illegally in that Member State, without having first examined whether there does not exist, between that third-country national and a Union citizen who is member of his family, such a relationship of dependency as to require the granting to that third-country national of a derived right of residence under Article 20 TFEU. Further, it must be borne in mind that, in the first place, 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, stems directly from that provision and does not presuppose that the third-country national already has some other right of residence in the territory of the Member State concerned and, in the second place, since the benefit of that right of residence must be accorded to that third-country national from the moment when the relationship of dependency between him or her and the Union citizen comes into being, that third-country national can no longer be considered, from that moment and for as long as that relationship of dependency lasts, as staying illegally in the territory of the Member State concerned, within the meaning of Article 3(2) of Directive 2008/115. As regards, second, the fact that the entry ban is due to public policy grounds, the Court has previously held that Article 20 TFEU does not affect the possibility of Member States relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security. On the other hand, that conclusion cannot be drawn automatically on the basis solely of the criminal record of the person concerned. That assessment must therefore take account in particular of the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of any children at issue and their state of health, as well as their economic and family situation (judgments of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 86, and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 42). (see paras 87-90, 93, 94, 97, operative part 2) 8. Article 5 of Directive 2008/115 must be interpreted as precluding a national practice pursuant to which a return decision is adopted with respect to a third-country national, who has previously been the subject of a return decision, accompanied by an entry ban that remains in force, without any account being taken of the details of his or her family life, and in particular the interests of a minor child of that third-country national, referred to in an application for residence for the purposes of family reunification submitted after the adoption of such an entry ban, unless such details could have been provided earlier by the person concerned. More specifically, pursuant to Article 5 of Directive 2008/115, headed ‘Non‑refoulement, best interests of the child, family life and state of health’, when the Member States implement that directive, they must, first, take due account of the best interests of the child, family life and the state of health of the third-country national concerned and, second, respect the principle of non-refoulement (judgment of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 48). It follows that, when the competent national authority is contemplating the adoption of a return decision, that authority must necessarily observe the obligations imposed by Article 5 of Directive 2008/115 and hear the person concerned on that subject. In that regard, the person concerned must cooperate with the competent national authority when he is heard in order to provide the authority with all the relevant information on his personal and family situation and, in particular, information which might justify a return decision not being issued (judgment of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraphs 49 and 50). The duty of honest cooperation means that he or she is obliged, as soon as possible, to inform that authority of any relevant changes in his or her family life. Accordingly, where, as in the cases in the main proceedings, the third‑country national has previously been the subject of a return decision, and in so far as, in the course of that initial procedure, he may have provided details of his family life, as it previously existed at that time, and as the basis for his application for residence for the purposes of family reunification, the competent national authority cannot be criticised for failing to take those details into account, in the course of a subsequent return procedure, since those details ought to have been put forward by the person concerned at an earlier procedural stage. (see paras 102, 103, 105-107, operative part 3)