62021CJ0607_RES
Case C‑607/21
XXX
v
État belge
(Request for a preliminary ruling from the Conseil d’État (Belgium))
Judgment of the Court (First Chamber) of 10 April 2025
(Reference for a preliminary ruling – Citizenship of the Union – Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Article 3 – Beneficiaries – Article 2(2)(d) – Family member – Direct relative in the ascending line of the partner of a Union citizen who is dependent on that Union citizen and/or that partner – Assessment of the condition of being ‘dependent’ – Relevant date for determining material dependence – Article 10 – Conditions for the issue of a residence card – Declaratory nature of a residence card – Submission of an application for a residence card in the host Member State several years after leaving the country of origin – Effect of a situation of illegal residence under national legislation on the assessment of the condition of being ‘dependent’)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Beneficiaries – Third-country national, direct relative in the ascending line of the partner of a Union citizen, dependent on that Union citizen and/or that partner – National concerned joining that partner and that citizen, both Union citizens, in the host Member State – Member State concerned being that of the nationality of the citizen being joined but not that of the nationality of his or her partner – Included
(European Parliament and Council Directive 2004/38, Arts 2(2), 3(1) and 7(1)(a), (b), (c) and (2))
(see paragraphs 28-34)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Beneficiaries – Third-country national, direct relative in the ascending line of the partner of a Union citizen, dependent on that Union citizen and/or that partner – Condition of the relationship of dependency – Assessment having regard to the situation of that relative in the ascending line in his or her country of origin on the date of his or her departure on the basis of documents issued before that date – Elapse of several years between the date of arrival in the host Member State and the date of submission of a residence card application – Assessment having regard to the situation of that relative in the ascending line in the host Member State on the date of submission of that residence card application
(European Parliament and Council Directive 2004/38, Arts 2(2)(d), 7(2) and 10)
(see paragraphs 35-59, operative part 1)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Right of residence derived from the rights enjoyed by a Union citizen – Beneficiaries – Third-country national, direct relative in the ascending line of the partner of a Union citizen, dependent on that Union citizen and/or that partner – Satisfaction of the condition of the relationship of dependency demonstrated both on the date of his or her arrival in the host Member State and on that of his or her residence card application submitted several years after his or her arrival – Included – Conditions – Illegal residence of the relative in the ascending line concerned in the host Member State on the date of his or her application – Not relevant
(European Parliament and Council Directive 2004/38, Arts 2(2)(d), 7(2) and 10)
(see paragraphs 61-66, operative part 2)
Résumé
Ruling on a request for a preliminary ruling in the context of a dispute concerning an application for a residence card submitted by a direct relative in the ascending line of the partner of a European Union citizen, the Court of Justice provides clarification on the assessment of the condition relating to the relationship of dependency between that direct relative in the ascending line and that citizen or his or her partner, for the purposes of obtaining a derived right of residence under Directive 2004/38. (
1
)
XXX, of Moroccan nationality, is the mother of a Belgian national residing in Belgium with his partner, Ms N.E.K., who is a Netherlands national and who made a formal declaration of cohabitation with XXX’s son in 2005 in Belgium.
Having entered the Belgian territory in July 2011, XXX submitted to the Belgian authorities, in September 2011, an application for a residence card as a direct dependent relative in the ascending line of her son.
That application having been rejected on the ground of an amendment to the Belgian law on family reunification, XXX submitted, in 2015, a second application for a residence card, this time as a family member of Ms N.E.K.
That new application was rejected on the ground, first, that XXX had not provided evidence that the family members being joined had sufficient resources to support her and, second, that the documents proving her relationship of dependency were too old. That rejection and the accompanying order to leave the Belgian territory were confirmed by the Conseil du contentieux des étrangers (Council for Asylum and Immigration Proceedings, Belgium).
A third application for a residence card submitted by XXX in 2017 as a family member of her son’s partner was also rejected, the Belgian authorities having taken the view that the documents proving XXX’s dependence, which dated from 2010 and 2011, were too old.
By a judgment of August 2019, the Conseil du contentieux des étrangers (Council for Asylum and Immigration Proceedings), taking the view that the documents produced by XXX tended to prove the existence of a situation of financial dependence in 2010 and 2011, but did not make it possible to prove such a situation on the date of her residence card application, in 2017, confirmed that rejection.
Hearing an appeal against that judgment, the referring court decided to question the Court as to the relevant point in time for assessing the condition relating to the relationship of dependency and the possible effect that the applicant’s illegal residence in the territory of the host Member State might have on that assessment.
Findings of the Court
As a preliminary point, the Court states that the dependent direct relatives in the ascending line of the partner of a Union citizen residing in a Member State of which he or she is not a national must be regarded, for the purposes of the application of the rights guaranteed by Directive 2004/38, as being the family members of a Union citizen, provided that the registered partnership meets the criteria referred to in Article 2(2)(b) of that same directive. In the case at hand, with the referring court appearing to consider that the declaration of cohabitation made in 2005 constitutes the conclusion of such a partnership, Directive 2004/38 is applicable. Thus, provided that XXX can demonstrate that she is a dependant of the household being joined, within the meaning of Article 2(2)(d) of that directive, she may avail herself of the rights guaranteed by that directive and, in particular, of a right of residence for more than three months under Article 7(2) of that directive.
As to the substance, in the first place, the Court states that, under Directive 2004/38, (
2
) in order to determine whether the direct relative in the ascending line of the partner of a Union citizen is dependent on that Union citizen and/or that partner, the competent national authority must take into account the situation of that relative in the ascending line in his or her country of origin on the date on which he or she left that country and joined the said Union citizen in the host Member State, where appropriate on the basis of documents issued before that date, or the situation of that relative in the ascending line in that Member State on the date on which an application for a residence card was submitted, if several years have elapsed between those two dates.
In order to arrive at that conclusion, the Court examines, first of all, the date on which the condition relating to the relationship of dependency referred to in Article 2(2)(d) of Directive 2004/38 must be assessed. In that regard, as regards a situation in which several years separate the departure of the third-country national from his or her country of origin and his or her residence card application, the competent national authority must, in the context of the administrative procedure provided for in Article 10 of Directive 2004/38, provide a residence card to the applicant, a third-country national, after having verified that he or she qualifies for a right of residence for more than three months, (
3
) in particular that he or she falls within the concept of ‘family member’ within the meaning of that directive. In such a situation, however, if the competent national authority, when examining the application for a residence card, did not verify that the direct relative in the ascending line of the partner of a Union citizen, who physically joined that partner in the host Member State a few years before the submission of that application, is, at the time that that application is submitted, dependent on that Union citizen and/or partner, (
4
) there is a risk that that relative in the ascending line will be granted a residence card even though he or she does not satisfy the conditions (
5
) for entitlement to a right of residence for more than three months and thus to such a residence card. Consequently, when submitting the residence card application, the third-country national must demonstrate that he or she has the status of ‘dependent direct relative in the ascending line’, within the meaning of Article 2(2)(d) of Directive 2004/38.
Next, the Court states that, in such a situation of elapse of several years between the arrival of the direct ascendant of the partner of the Union citizen in the host Member State and the submission of his or her residence card application, that relative in the ascending line must also furnish proof that he or she is dependent on that citizen and/or that partner on the date of his or her arrival in the territory of the Member State concerned. If the review of the condition relating to the relationship of dependency were limited to the situation of the direct relative in the ascending line in the host Member State on the date of submission of the application for a residence card, that relative in the ascending line could be provided with such a card, even though, on the date on which he or she physically joined the Union citizen, he or she did not satisfy the conditions necessary to qualify for a right of residence for more than three months, which, moreover, would run counter to the objectives pursued by Directive 2004/38. In particular, such a limited review, first, would risk increasing the number of potential beneficiaries of the rights conferred by that directive, thereby contravening the intention expressed by the EU legislature and, second, would entail the risk of circumventing the requirements set by the said directive.
The Court adds that those risks do not exist, however, where the direct relative in the ascending line in question entered the territory of the host Member State and resided there initially on the basis of a right of residence, autonomous or derived, which could be granted under EU law under a provision other than Article 7(2) of Directive 2004/38, or indeed under national law. Accordingly, in such a situation, it is sufficient for that relative in the ascending line to prove that he or she is dependent on the Union citizen and/or the partner of that citizen in that Member State on the date on which his or her application for a residence card is submitted.
Lastly, so far as concerns the means of acceptable proof by which the person concerned can establish that he or she has the status of ‘dependent direct relative in the ascending line’, (
6
) Article 10(2)(d) of Directive 2004/38 merely states that, for the residence card to be issued, Member States must request documentary evidence that the conditions set out in that Article 2(2)(d), thus including the condition relating to the relationship of dependency, are satisfied. Given the lack of precision as to that means of proof, it must be held that such proof may be adduced by any appropriate means. In that regard, documents issued in the past attesting to the existence of a situation of dependence in the country of origin of that direct relative in the ascending line on the date on which he or she physically joined that Union citizen and that partner cannot be deemed too old.
In the second place, the Court rules that, under Directive 2004/38, (
7
) a direct relative in the ascending line of the partner of a Union citizen who is able to demonstrate that he or she is, both on the date of his or her residence card application, submitted several years after his or her arrival in the host Member State, and on the date of that arrival, dependent on that Union citizen and/or that partner, enjoys a right of residence derived from the rights enjoyed by a Union citizen, for more than three months, evidenced by the issue of a residence card, if that Union citizen satisfies the conditions set out in Article 7 of that directive. That right of residence cannot be refused on the ground that, under national legislation, that relative in the ascending line resides, on the date of that application, illegally in the territory of that Member State.
On that point, the Court notes, in particular, that Directive 2004/38, although it makes its applicability for direct relatives in the ascending line subject to the relationship of dependency, referred to, in essence, in Article 2(2)(d) thereof, does not make the status of ‘family member’, within the meaning of that provision, dependent on a condition of ‘legal residence’ in the host Member State.
(
1
)	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 197, p. 34; and OJ 2007 L 204, p. 28). More specifically, that condition relating to the relationship of dependency is provided for in Article 2(2)(d) of Directive 2004/38.
(
2
)	The Court relies on Article 2(2)(d) of Directive 2004/38, read in conjunction with Article 7(2) and Article 10 of that directive.
(
3
)	Under Article 7(2) of Directive 2004/38.
(
4
)	Within the meaning of Article 2(2)(d) of Directive 2004/38.
(
5
)	Article 7(2) of Directive 2004/38.
(
6
)	Within the meaning of Article 2(2)(d) of Directive 2004/38.
(
7
)	The Court relies on Article 7(2) of Directive 2004/38, read in conjunction with Article 2(2)(d) and Article 10 of that directive.