SM v Entry Clearance Officer, UK Visa Section.
Date: 2019-03-26
50


That provision makes no express reference to the law of the Member States for the purpose of determining the meaning and scope of the concept of a ‘direct descendant’. In those circumstances, the need for a uniform application of EU law and the principle of equality require that the terms of that provision must normally be given an independent and uniform interpretation throughout the European Union (see, to that effect, judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 32).
51


In addition, Directive 2004/38 does not contain any definition of the concept of a ‘direct descendant’ for the purposes of Article 2(2)(c) thereof. In those circumstances, according to the settled case-law of the Court, in interpreting that provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 7 October 2010, Lassal, C‑162/09, EU:C:2010:592, paragraph 49).
53


Although that concept primarily focuses on the existence of a biological parent-child relationship, it should nonetheless be borne in mind that, according to settled case-law, the aim of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States, which is conferred directly on citizens of the Union by Article 21(1) TFEU, and that one of the objectives of that directive is to strengthen that right (judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 35, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 18). In view of those objectives, the provisions of Directive 2004/38, including Article 2(2) thereof, must be construed broadly (see, to that effect, judgments of 16 January 2014, Reyes, C‑423/12, EU:C:2014:16, paragraph 23, and of 10 July 2014, Ogieriakhi, C‑244/13, EU:C:2014:2068, paragraph 40).
60


As follows from recital 6 of Directive 2004/38, the objective of Article 3(2)(a) thereof is to ‘maintain the unity of the family in a broader sense’ by facilitating entry and residence for persons who are not included in the definition of ‘family member’ of a Union citizen contained in Article 2(2) of that directive but who nevertheless maintain close and stable family ties with a Union citizen on account of specific factual circumstances, such as economic dependence, being a member of the household or serious health grounds (judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 32).
61


According to the case-law of the Court, Article 3(2) of Directive 2004/38 imposes an obligation on the Member States to confer a certain advantage on applications submitted by the third-country nationals referred to in that article, compared with applications for entry and residence of other third-country nationals (see, to that effect, judgments of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 21, and of 12 July 2018, Banger, C‑89/17, EU:C:2018:570, paragraph 31).
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Thus, the Member States must, in accordance with that provision, make it possible for the persons envisaged therein to obtain a decision on their application that is founded on an extensive examination of their personal circumstances, taking account of the various factors that may be relevant, and, in the event of refusal, is justified by reasons (see, to that effect, judgments of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraphs 22 and 23, and of 12 July 2018, Banger, C‑89/17, EU:C:2018:570, paragraphs 38 and 39).
63


It is true that each Member State has a wide discretion as regards the selection of the factors to be taken into account, provided that their legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’ used in Article 3(2) of Directive 2004/38 and which do not deprive that provision of its effectiveness (see, to that effect, judgments of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 24, and of 12 July 2018, Banger, C‑89/17, EU:C:2018:570, paragraph 40).
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However, that discretion must, having regard to recital 31 of Directive 2004/38, be exercised in the light of and in line with the provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, by analogy, judgment of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraphs 79 and 80 and the case-law cited).
65


In that regard, Article 7 of the Charter recognises the right to respect for private and family life. As is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed by Article 7 thereof have the same meaning and the same scope as those guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (see, to that effect, judgments of 5 October 2010, McB., C‑400/10 PPU, EU:C:2010:582, paragraph 53, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 49).
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Article 7 of the Charter must, moreover, be read in conjunction with the obligation to take into consideration the best interests of the child, which are recognised in Article 24(2) thereof (see, to that effect, judgments of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 58; of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraph 54; and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 70).
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Accordingly, in order to comply with those provisions when exercising their discretion, it is for the competent national authorities, when implementing the obligation to facilitate entry and residence for the other family members laid down in Article 3(2)(a) of Directive 2004/38, to make a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking account of all the interests in play and, in particular, of the best interests of the child concerned (see, by analogy, judgments of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 81; of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 85; and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 41).