Case C-83/11

Secretary of State for the Home Department

v

Muhammad Sazzadur Rahman and Others

(Reference for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber))

‛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(2) — Obligation to facilitate, in accordance with national legislation, entry and residence for ‘any other family members’ who are dependants of a Union citizen’

Summary — Judgment of the Court (Grand Chamber), 5 September 2012

Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Other family members of a Union citizen who are third-country nationals and do not fall under the definition in Article 2(2) of the directive — Issue of a residence card — Conditions that may be imposed by the Member States — Dependence having endured in the host Member State — Question not falling within the scope of the directive

Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Other family members of a Union citizen who are third-country nationals and do not fall under the definition in Article 2(2) of the directive — Member who is a dependant of the Union citizen — Criteria — Possibility of imposing particular requirements relating to the nature and duration of dependence — Limits

Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Other family members of a Union citizen who are third-country nationals and do not fall under the definition in Article 2(2) of the directive — Members who are a dependant of the Union citizen in the country from which they have come — Meaning of ‘country from which they have come’ (‘pays de provenance’) — Dependence assessed at the time of the application

Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Other family members of a Union citizen who are third-country nationals and do not fall under the definition in Article 2(2) of the directive — Obligation on the Member States to facilitate entry and residence for those nationals — Right of the beneficiaries to rely directly on that provision before national courts — Limits

Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Other family members of a Union citizen who are third-country nationals and do not fall under the definition in Article 2(2) of the directive — Obligation on the Member States to facilitate entry and residence for those nationals — Scope — Discretion of the Member States — Limits

On a proper construction of Article 3(2) of 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, the Member States are not required to grant every application for entry or residence submitted by family members of a Union citizen who do not fall under the definition in Article 2(2) of that directive, even if they show, in accordance with Article 10(2) thereof, that they are dependants of that citizen. It is, however, incumbent upon the Member States to ensure that their legislation contains criteria which enable those persons to obtain a decision on their application for entry and residence that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons. The Member States have a wide discretion when selecting those criteria, but the criteria must be consistent with the normal meaning of the term ‘facilitate’ and of the words relating to dependence used in Article 3(2) and must not deprive that provision of its effectiveness. (see para. 26, operative part 1)

Even though the wording used in Article 3(2) of 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 is not sufficiently precise to enable an applicant for entry or residence to rely directly on that provision in order to invoke criteria which should in his view be applied when assessing his application, the fact remains that such an applicant is entitled to a judicial review of whether the national legislation and its application have remained within the limits of the discretion set by that directive. (see paras 25, 26, operative part 1)

In order to fall within the category, referred to in Article 3(2) of 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, of family members who are ‘dependants’ of a Union citizen, the situation of dependence must exist in the country from which the family member concerned comes — that is to say, the State in which he is resident on the date when he applies to accompany or join the Union citizen — at the very least at the time when he applies to join the Union citizen on whom he is dependent. (see paras 31, 35, operative part 2)

On a proper construction of Article 3(2) of 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, the Member States may, in the exercise of the discretion as regards the selection of the factors to be taken into account when examining applications for entry and residence submitted by family members of a Union citizen who are envisaged in Article 3(2) of the directive, lay down in their legislation particular requirements as to the nature and duration of dependence, in order in particular to satisfy themselves that the situation of dependence is genuine and stable and has not been brought about with the sole objective of obtaining entry into and residence in the host Member State. Those requirements must, however, be consistent with the normal meaning of the words relating to the dependence referred to in Article 3(2)(a) of the directive and not deprive that provision of its effectiveness. (see paras 38, 40, operative part 3)