At the Periphery of EU Citizenship: C-356/11 O, S and L

2013 is the European Year of Citizens and so we kick off the New Year with a discussion of one of the more contested aspects of EU citizenship, namely the right of (static) EU citizens to be accompanied by third country national (“TCN”) family members in their own Member State. Specifically, in joined cases C-356/11, C-357/11 O, S & L, decided on 6 December 2012, the Court was asked whether a TCN step-parent could derive a right of residence from the Union citizenship of his step-child

Situated at the interface between EU citizenship, immigration law and the fundamental right to family life, this issue has proved to be a vexing one for the Court of Justice.

Zambrano – a (Limping) Legal Revolution

In the landmark – if decidedly laconic – Zambrano case, the Court held that the Colombian parents of two Belgian children – born and raised in Belgium and who had never exercised free movement rights – could not be denied residence and work permits where it would have the effect of depriving the Union citizens the genuine enjoyment of the substance of the rights conferred by their status as EU citizens.

Zambrano effectively redefined the scope of application of EU law, extending its reach to an otherwise “purely internal situation” and avoiding reverse discrimination by dispensing with the cross-border element usually required to trigger EU law.

However, the Court gave little indication as to what the “genuine enjoyment/substance of rights” test might entail, save a cryptic reference to Rottmann, a case where the threatened loss of German citizenship, resulting in statelessness, in an otherwise internal situation was found to fall within the scope of EU law “by reason of its nature and its consequences”.

The subsequent cases of McCarthy and Dereci, which sought to whittle down the Zambrano test, further muddied the conceptual waters. They emphasized that cross-border movement remained a pre-requisite, unless the Zambrano test could be satisfied.

In McCarthy, the Court held that the refusal to grant a UK residence permit to the Jamaican husband of a woman with dual Irish/UK nationality did not deprive her of the substance of her citizenship rights (Helena Wray has appositely contrasted McCarthy with the decision in Ibrahim).

In Dereci, the Court held that denial of the “genuine enjoyment of the substance of rights” referred to situations in which the Union citizen has to leave not only his or her own Member State, but the territory of the Union as a whole. This applied only to exceptional situations, where the effectiveness of Union citizenship would otherwise be undermined. Crucially, the Court held that the fact that it might be desirable, for economic or family reasons, to keep the family together was not sufficient in itself to support the view that the Union citizen will be forced to leave. The Court then passed the buck, leaving it to the national court to decide whether the test had been satisfied on the facts.

Most recently, the Court held in Iida that the Japanese father of a German child who lived in Austria with her mother could not invoke a right of residence in Germany- where he worked and resided – on the grounds that he was the father of an EU citizen, since it would not deprive the daughter of the genuine enjoyment of her rights nor would it impede her from moving freely within the EU.

Joined Cases C-356/11, C-357/11 O, S & L

In all of the above judgments there was a common, glaring omission – a discussion of the right to family life and the best interests of the child. In case C-356/11, concerning the right of a TCN to derive a right of residence from the Union citizen child of his spouse despite his lack of sufficient resources, the Court seized the opportunity to address these fundamental rights in a different context, namely by applying, proprio motu, the Family Reunification Directive, the legal regime governing the right of third country nationals to family unity.

The present cases concerned two women in largely analogous situations. Both were third country nationals (Ghanaian and Algerian); both had moved to Finland, had married Finnish men and had given birth to a child, who had Finnish nationality. Both marriages broke down and the women received custody of their children. Later, both women remarried to TCN men and had another child. This time the child took the mother’s nationality. Subsequently, the husbands’ applications for residence permits were refused on grounds of insufficient means of subsistence. In the case of the Algerian woman, her husband had already been removed from the territory.

The referring court, relying on Zambrano, was concerned that the refusal to grant residence permits to the men – step-parents of minor Union citizens – might result in the family being forced to leave the territory of the EU. It asked, therefore, whether Article 20 TFEU (citizenship) precluded the refusal of a residence permit to a TCN in a situation where his spouse had custody of a Union citizen child, notably in a situation where he was not the biological father, nor a custodian of that child.

Following the earlier line of cases, the Court began by holding that the Citizenship Directive (Directive 2004/38) did not apply, since the Union citizens had not exercised their right of free movement and therefore did not fall under the notion of “beneficiary” of the Directive.

Turning then to the Treaty provisions, it restated the rules set out in the Zambrano and Dereci cases, discussed above, and again, left it to the national court to decide whether the “genuine enjoyment of the substance of rights” had been deprived.

The Court then proceeded to give some guidance and sought to distinguish the present case from the plight faced by the Zambrano family. Both the Court and the Advocate General asserted the importance of the dependency of the minor EU citizen on the TCN seeking residence. In Zambrano, that dependency signified that the children would have been forced to leave to accompany their parents.

However, in the present case, the Finnish children were not “legally, financially or emotionally dependent” on their step-fathers. Moreover, their mothers – who were their custodians – already had permanent residency and thus, the failure to grant residence permits to the step-fathers would not have compelled the Union citizens to leave. Citing Dereci, the Court recalled that the desirability of keeping a family together was not sufficient in itself to conclude that the Union citizen children would be forced to leave.

The Advocate General was somewhat more dismissive: if the Union citizens had to leave the territory of the EU, it was only because of the deliberate decision of their mother based on “the whims and vagaries of his mother’s married life rather than a constraint imposed by the implementation of the national legislation.”

The Court thus concluded that Article 20 TFEU did not preclude a Member State from refusing the TCN step-parent of a Union citizen a residence permit, provided that the refusal did not entail the denial of the genuine enjoyment of the Union citizen’s enjoyment of rights.

Surprisingly, however, the Court did not stop there. Following the lead of the Advocate General, it recognized that the right to family life was a separate consideration, to be addressed in the context of applicable fundamental rights provisions. In the event, there was an applicable provision, albeit not one raised by the referring court – the Family Reunification Directive (Directive 2003/86).

The Family Reunification Directive applies only to family members of TCN residents, a fact which precluded the applicants in the Dereci case from relying on it.

Here, however, the Court held that the TCN wives/mothers were “sponsors” within the meaning of Article 2(c). In light of the purpose of the Directive, namely the promotion and protection of family life and its attendant benefits, such as social cohesion and integration, the women could not be excluded from the scope of application of the Directive simply because they were, in addition to being the spouses and mothers of TCNs, the parents of a Union citizen, born of a previous marriage.

The Directive imposes an obligation on States to authorize family reunification. Nonetheless, it may be subject to compliance with certain conditions, including a requirement to show sufficient resources (Article 7(1)(c)). In the Chakroun case, the Court held that Article 7(1)(c) of the Directive

“must be interpreted in the light of the fundamental rights and, more particularly, in the light of the right to respect for family life enshrined in both the ECHR and the Charter.”

The Charter of Fundamental Rights protects the right to private and family life (Article 7) in addition to the obligation to respect the best interests of the child (Article 24(2)) and the need for children to maintain regular, personal contact with both parents (Article 24(3)).

Crucially, the Court affirmed in the present case that:

“Member States must not only interpret their national law in a manner consistent with EU law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the legal order of the European Union”. (para.78)

Member States must therefore apply the provisions of the Family Reunification Directive in light of the Articles 7 and 24(2) and (3) of the Charter, making “a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned” and “avoiding any undermining of the objective and the effectiveness of that directive.”

In this respect, the Court reaffirmed the role of the national judge in the EU law edifice – they must uphold Charter rights when applying both national and EU law and must balance the competing interests.

However, the outcome of such a balancing exercise in the present case is by no means clear. The Advocate General conducts a detailed review of the factors to be considered, concluding that one of the cases was more likely to succeed than the other.  It is recalled that, under the ECHR, there is no obligation to respect the choice of a married couple as to their matrimonial residence and to authorize family reunion in this territory (see Gül v Switzerland). Equally, the ECHR also “considers that only exceptional circumstances may lead to a severing of the family ties and that everything must be done to preserve personal relations and family unity or to ‘rebuild’ the family.”(AG Opinion, para. 25). As the Court pointed out, the rights of the Finnish fathers must also be considered – this may prove to be the tipping point.


Zambrano was a case truly at the outer limits of EU law – the Court sought to avoid the unfortunate effects of reverse discrimination by stretching – if somewhat distorting – the scope of EU law. However, it lost the power of its conviction in subsequent cases, generating an intolerable degree of uncertainty and ambiguity in the jurisprudence. The present case differs in so far as the facts were sufficiently beyond the realm of the citizenship provisions that they fell back into the regime governing the reunification of third country nationals.