Case C‑165/14

Alfredo Rendón Marín

v

Administración del Estado

(Request for a preliminary ruling from the Tribunal Supremo)

‛Reference for a preliminary ruling — Citizenship of the Union — Articles 20 and 21 TFEU — Directive 2004/38/EC — Right of a third-country national with a criminal record to reside in a Member State — Parent having sole care of two minor children, who are Union citizens — First child possessing the nationality of the Member State of residence — Second child possessing the nationality of another Member State — National legislation precluding grant of a residence permit to the father because of his criminal record — Refusal of residence capable of resulting in the children being obliged to leave the territory of the European Union’

Summary — Judgment of the Court (Grand Chamber), 13 September 2016

Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Limitation on the right of entry and the right of residence on grounds of public policy or public security — National legislation precluding automatically, on account solely of his criminal record, the grant of a residence permit to a third-country national where he is the parent of minor children who are Union citizens for whom he has sole responsibility — Refusal of residence capable of resulting in those children being obliged to leave the territory of the European Union — Not permissible

Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Limitation on the right of entry and the right of residence on grounds of public policy or public security — National legislation precluding automatically, on account solely of his criminal record, the grant of a residence permit to a third-country national where he is the parent of a minor child who is a Union citizen and who is his dependant and resides with him in the host Member State — Not permissible

Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Union citizen who is a minor and who has never made use of his right of freedom of movement and has always resided in the Member State of which he is a national — Not included

Questions referred for a preliminary ruling — Reference to the Court — Need for a dispute to be pending before the referring court — Claims set out in the context of the main action not fully satisfied — Reply from the Court remaining useful for deciding the dispute in the main proceedings

See the text of the decision. (see paras 24-32)

See the text of the decision. (see paras 33, 34)

See the text of the decision. (see para. 40)

Article 21 TFEU and 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 must be interpreted as precluding national legislation which requires a third-country national to be automatically refused the grant of a residence permit on the sole ground that he has a criminal record where he is the parent of a minor child who is a Union citizen and a national of a Member State other than the host Member State and who is his dependant and resides with him in the host Member State. EU law precludes a limitation on the right of residence that is founded on grounds of a general preventive nature and ordered for the purpose of deterring other foreign nationals, in particular where that measure has been adopted automatically following a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of public policy. Thus, in order to determine whether an expulsion measure is proportionate to the legitimate aim pursued, in the present instance protection of the requirements of public policy or public security, account should be taken of the criteria set out in Article 28(1) of Directive 2004/38, namely how long the individual concerned has resided on the territory of the host Member State, his age, his state of health, his family and economic situation, his social and cultural integration into the host Member State and the extent of his links with his country of origin. The degree of gravity of the offence must also be taken into consideration in the context of the principle of proportionality. In that regard, the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and the condition relating to the existence of a present threat must, in principle, be fulfilled at the time when the measure at issue is adopted. As regards, moreover, the possible expulsion of the third-country national concerned, it is necessary, first, to take account of the fundamental rights whose observance the Court ensures, in particular the right to respect for private and family life, as laid down in Article 7 of the Charter of Fundamental Rights of the European Union, and, secondly, to observe the principle of proportionality. Article 7 of the Charter must be read in conjunction with the obligation to take into consideration the child’s best interests, recognised in Article 24(2) thereof. (see paras 61, 62, 65-67, 88, operative part)