Staatssecretaris van Veiligheid en Justitie v Y.Z. and Others.
Date: 2019-03-14
47


It is apparent from recital 4 of Directive 2003/86, that that directive has the general objective of facilitating the integration of third-country nationals, namely the sponsors, in Member States by making family life possible through reunification (judgment of 21 April 2016, Khachab, C‑558/14, EU:C:2016:285, paragraph 26). It follows from that objective and a reading of the whole of that directive, in particular Article 13(3) and Article 16(3) thereof, that, as long as the family members concerned have not acquired an autonomous right of residence on the basis of Article 15 of that directive, their right of residence is a right derived from that of the sponsor concerned and intended to assist the latter’s integration. In those circumstances, a Member State must be able to find that the fraud committed by the sponsor affects the process of family reunification as a whole, in particular the derived right of residence of the sponsor’s family members and, on that basis, withdraw the residence permits of those family members, even though they were unaware of the fraud that was committed. That is all the more so where, as in the present case, the fraud committed vitiates the regularity of the sponsor’s right of residence.
51


Nevertheless, as the Advocate General observed in points 27 and 28 of his opinion, the withdrawal of a residence permit pursuant to Article 16(2)(a) of Directive 2003/86 cannot occur automatically. It is clear from the use, in that provision, of the words ‘may … withdraw’ that Member States have a discretion as to that withdrawal. In that regard, in accordance with Article 17 of that directive, the Member State concerned must first examine, on a case-by-case basis, the situation of the family member concerned, by making a balanced and reasonable assessment of all the interests in play (see, to that effect, the judgments of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 81, and of 21 April 2016, Khachab, C‑558/14, EU:C:2016:285, paragraph 43).
53


Furthermore, as is clear from recital 2 of Directive 2003/86, the measures concerning family reunification, such as measures for the withdrawal of a residence permit issued to family members, must be adopted in conformity with fundamental rights, in particular the right to respect for private and family life guaranteed by Article 7 of the Charter, which contains rights corresponding to those protected by Article 8(1) of the ECHR (see, to that effect, the judgments of 4 March 2010, Chakroun, C‑578/08, EU:C:2010:117, paragraph 44, and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraphs 75 and 76). Therefore, while the Member State enjoys a certain discretion for the purposes of the assessment laid down in Article 17 of Directive 2003/86, that assessment must be conducted in compliance with Article 7 of the Charter.
62


In accordance with the established case-law of the Court, individuals cannot rely fraudulently on EU law, since the principle of prohibition of fraud is a general principle of EU law which individuals must comply with (see, to that effect, judgments of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraphs 48 and 49, and of 11 July 2018, Commission v Belgique, C‑356/15, EU:C:2018:555, paragraph 99). The refusal or withdrawal of a right on account of abusive or fraudulent acts is simply the consequence of the finding that, in the event of fraud, the objective conditions required in order to obtain the right sought are not, in fact, met (see, to that effect, the judgment of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 32).
63


Furthermore, it is clear from recitals 2, 4, 6 and 12 of Directive 2003/109 that the objective of the directive is the integration of third-country nationals who are settled lawfully and on a long-term basis in the Member States (see, to that effect, judgments of 17 July 2014, Tahir, C‑469/13, EU:C:2014:2094, paragraph 32; of 4 June 2015, P and S, C‑579/13, EU:C:2015:369, paragraph 46; and of 2 September 2015, CGIL and INCA, C‑309/14, EU:C:2015:523, paragraph 21) and, for that purpose, bringing the rights of those nationals closer to those enjoyed by EU citizens, inter alia by establishing equal treatment with the latter in a wide range of economic and social fields. Thus, long-term resident status enables the person benefiting from it to enjoy equal treatment in the fields covered by Article 11 of Directive 2003/109, under the conditions laid down in that article. Under Article 14(1) of that directive, that status also affords the long-term resident the right to reside for a period exceeding three months on the territory of Member States other than the one which granted him that status, under the conditions set out in Chapter III of the directive, and to benefit there, in accordance with Article 21 of the same directive, from equal treatment as provided for in Article 11 thereof.
69


In that case, the Court held that, from the time when the family members of a Turkish worker acquired an autonomous right of residence pursuant to the first paragraph of Article 7 of Decision No 1/80, that right could no longer be called into question on account of irregularities which, in the past, affected the right of residence of that worker and which, in that case, were irregularities arising from the latter’s fraudulent conduct (see, to that effect, the judgment of 18 December 2008, Altun, C‑337/07, EU:C:2008:744, paragraphs 56, 57 and 59). Thus, the Court held in essence that the fraud affecting the Turkish worker’s right of residence could not affect the autonomous right of residence of his family members.