Subdelegación del Gobierno en Ciudad Real v RH.
Date: 2020-02-27
29


The national court further states that RH’s wife is a Spanish national who has never exercised the freedom of movement within the European Union. It must be noted that, in such a situation, her spouse, who is a third-country national, cannot derive a right of residence either from Directive 2004/38 or from Article 21 TFEU (see, to that effect, judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 40 and the case-law cited).
31


In those circumstances, it appears to be useful to recall that, in accordance with the settled case-law of the court and as the Advocate General noted in point 41 of his Opinion, the requirement concerning the sufficiency of resources, set out in Article 7 of Directive 2004/38, must be interpreted as meaning that, although the Union citizen must have sufficient resources, there is not the slightest requirement under EU law concerning their source, since they may be provided, in particular, by a member of that citizen’s family (see, to that effect, judgments of 19 October 2004, Zhu and Chen, C‑200/02, EU:C:2004:639, paragraphs 30 to 33, and of 2 October 2019, Bajratari, C‑93/18, EU:C:2019:809, paragraph 30 and the case-law cited).
35


In that regard, it must be borne in mind that, in accordance with the 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 (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 47 and the case-law cited).
36


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 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 48 and the case-law cited).
37


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 (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 49 and the case-law cited).
38


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 freedom of movement of a Union citizen (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 50 and the case-law cited).
39


In that regard, 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 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 or her of the genuine enjoyment of the substance of the rights conferred by that status (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 51).
40


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 (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 52 and the case-law cited).
44


Thus, the Court has previously ruled that Article 20 TFEU does not affect the possibility of Member States relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security (judgments of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 36, and of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 81).
45


A refusal of a right of residence 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, is accordingly 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 (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 92 and the case-law cited).
47


In that regard, it must be pointed out that the assessment of an exception to a derived right of residence flowing from Article 20 TFEU must take account of 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 (judgments of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 36, and of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 81) and, more generally, of the principle of proportionality as a general principle of EU law.
51


As regards, fourth, the procedural arrangements under which, in the context of an application for residence for the purposes of family reunification, a third-country national may rely on the existence of a derived right under Article 20 TFEU, the Court held that, while it is indeed for the Member States to determine the detailed 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 39 of this judgment, be granted under Article 20 TFEU, the fact remains that those procedural arrangements cannot, however, compromise the effectiveness of Article 20 (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 54).
52


Thus, although the national authorities are not obliged to examine systematically and on their own initiative the existence of a relationship of dependency within the meaning of Article 20 TFEU, the person concerned having to provide the evidence enabling them to assess whether the conditions for the application of Article 20 TFEU are satisfied, the effectiveness of that article would, nonetheless, be jeopardised if the third-country national or the Union citizen, as a member of his or her family, were prevented from relying on the factors which make it possible to assess whether a relationship of dependency, within the meaning of Article 20 TFEU, exists between them (see, by analogy, judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraphs 75 and 76).
53


Accordingly, where the competent national authority receives an application from a third-country national for the grant of a right of residence for the purpose of family reunification with a Union citizen who is a national of the Member State concerned, that authority cannot automatically reject that application on the sole ground that the Union citizen does not have sufficient resources. On the contrary, it is for that authority to assess, on the basis of the evidence which the third-country national and the Union citizen concerned must be free to provide and, if necessary, by carrying out the necessary investigations, whether there is a relationship of dependency between those two persons as described in paragraph 39 of this judgment, such that a derived right of residence must, in principle, be granted to that national under Article 20 TFEU (see, to that effect, judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraphs 75 to 77).
56


It must be recalled, first of all, that, unlike minors, particularly if they are infants, an adult is, in principle, able to lead a life independent of the members of his or her 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 or her family on whom he or she is dependent (see, to that effect, judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 65).
57


Second, it follows from the case-law of the Court that the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his or her family together in EU territory, for the members of his or her family who do not have the nationality of a Member State to be able to reside with him or her in EU territory is not sufficient in itself to support the view that the Union citizen will be forced to leave the European Union if such a right is not granted (judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 74 and the case-law cited).
58


Accordingly, the existence of a family link, whether natural or legal, between the Union citizen and his or her third-country national family member cannot be sufficient ground to justify the grant, under Article 20 TFEU, of a derived right of residence to that family member in the territory of the Member State of which the Union citizen is a national (see, to that effect, judgment of 8 May 2018, K.A. and Others(Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 75).
60


Since it is thus recognised that nationals of a Member State enjoy an unconditional right of residence in the territory of that State (judgment of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 37), a Member State cannot lawfully require one of its nationals to leave its territory, in order, in particular, to comply with the obligations arising out of his or her marriage, without infringing the principle of international law referred to in the preceding paragraph of this judgment.