K.A. and Others v Belgische Staat.
Date: 2018-05-08
40


Second, the referring court adds that, in each of the seven joined cases in the main proceedings, the Belgian citizen concerned has never exercised his right to freedom of movement within the European Union. Consequently, the third-country national family members of the Belgian citizens concerned cannot claim a derived right of residence either under Directive 2004/38 or under Article 21 TFEU (see, to that effect, judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraphs 52 to 54).
47


It must be recalled, first, that, in accordance with the Court’s settled case-law, Article 20 TFEU confers on every individual who is a national of a Member State citizenship of the Union, which is intended to be the fundamental status of nationals of the Member States (see, inter alia, judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31; of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 41, and of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 69 and the case-law cited).
48


Citizenship of the Union confers on each Union citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaty and the measures adopted for their implementation (judgment of 13 September 2016Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 70 and the case-law cited).
49


In that context, the Court has held that Article 20 TFEU precludes national measures, including decisions refusing a right of residence to the family members of a Union citizen, which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status (judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 42; of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 45; and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 61).
50


On the other hand, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with a Union citizen’s freedom of movement (judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 62 and the case-law cited).
51


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).
52


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).
54


In that regard, while it is indeed for the Member States to determine the rules on how to give effect to the derived right of residence which a third-country national must, in the very specific situations referred to in paragraph 51 of this judgment, be granted under Article 20 TFEU, the fact remains that those procedural rules cannot, however, undermine the effectiveness of Article 20 (see, to that effect, judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 76).
65


As regards, first, the cases in the main proceedings where the respective applicants are K.A., M. Z. and B.A., it must, at the outset, be emphasised that, unlike minors and a fortiori minors who are young children, such as the Union citizens concerned in the case that gave rise to the judgment of 8 March 2011, Ruiz Zambrano (C‑34/09, EU:C:2011:124), an adult is, as a general rule, capable of living an independent existence apart from the members of his family. It follows that the identification of a relationship between two adult members of the same family as a relationship of dependency, capable of giving rise to a derived right of residence under Article 20 TFEU, is conceivable only in exceptional cases, where, having regard to all the relevant circumstances, there could be no form of separation of the individual concerned from the member of his family on whom he is dependent.
74


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).
75


Accordingly, the existence of a family link, whether natural or legal, between the minor Union citizen and his third-country national parent cannot be sufficient ground to justify the grant, under Article 20 TFEU, of a derived right of residence to that parent in the territory of the Member State of which the minor child is a national.
92


In that context, it must be held that, where the refusal of a right of residence is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of, inter alia, criminal offences committed by a third-country national, such a refusal is compatible with EU law even if its effect is that the Union citizen who is a family member of that third-country national is compelled to leave the territory of the European Union (see, to that effect, judgments of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 84, and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 40).
102


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).
103


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).