By Sarah Progin-Theuerkauf
On 8 May 2018, with the judgment in K.A. and others vs. Belgium, the Court of Justice of the European Union (ECJ) has added another piece to the now quite big puzzle that surrounds the legal status of EU citizens (and their third country family members). It ruled that Article 20 TFEU can be violated if a Member State refuses to examine a request for family reunification of a EU citizen with a third country national solely on the basis of an existing entry ban against the third country national. The Court argued that if the refusal compels the EU citizen to leave the territory of the EU as a whole, it deprives EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. Like in the Zambrano case, the EU citizens in K.A. had never exercised their right to free movement.
Just a quick reminder of the Court’s main findings in Zambrano: In that case, Belgium had denied a right of residence to a Colombian father of two Belgian minors. The Court held that, by not giving the father of a Belgian child a derived residence right, Belgium will oblige the child to leave the territory of the EU as a whole, and therefore deprive the child of the genuine enjoyment of the substance of the rights’ conferred by the EU citizenship status. It was argued – and here is the revolutionary aspect – that this even applies in purely internal situations, e.g. where the EU citizen has never exercised his or her right to free movement. Normally, EU law only applies in situations with a cross-border element.
The case submitted to the ECJ for a preliminary ruling concerned seven third country nationals (TCN) residing in Belgium (para. 18 et seqq.). They were all ordered to leave and banned from entering Belgium, some on grounds of a threat to public policy. Thereafter, the TCN filed applications for a residence permit in Belgium, based on their family relations with a Belgian citizen (some argued they were dependent descendants of a Belgian citizen, others were parent of a minor child in Belgium or a lawfully cohabiting partner in a stable relationship with a Belgian citizen). The competent Belgian authorities refused to examine their applications for family reunification based on the existing entry bans. Under Belgian law, an entry ban in force cannot be extinguished or suspended unless an application for its withdrawal or suspension is lodged from outside Belgium. It is also noteworthy that the Belgian citizens with whom the TCN claimed to have family relations have never exercised their right to freedom of movement and establishment (para. 40).
The Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings), seized with proceedings by the TCN, decided to refer four questions for a preliminary ruling to the ECJ (para. 32). All of them concerned the compatibility of the Belgian provisions with Article 20 TFEU and the Return Directive (Directive 2008/115/EC).
Violation of Article 20 TFEU
In its judgment, the ECJ firstly recalls the Zambrano jurisprudence and emphasizes that Article 20 TFEU confers on every individual who is a national of a Member State EU citizenship, which is intended to be the fundamental status of nationals of the Member States (see also Grzelczyk). EU citizens enjoy the right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the TFEU and secondary legislation. National measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status are prohibited. This includes decisions refusing a right of residence to family members of an EU citizen (para. 47 et seqq.), even in situations where the EU citizen has never made use of his right to move to another Member State.
The Court then comes to the conclusion that a refusal to grant a right of residence to a TCN can undermine the effectiveness of the Union citizen if there exists a relationship of dependency between the TCN and the Union citizen of such a nature that it would lead to the Union citizen being compelled to leave the territory of the European Union as a whole for an indefinite period of time in order to accompany the third-country national concerned (para. 52). In fact, in the case at hand, TCNs are obliged to first leave the territory of the European Union before they are allowed to submit a request for the withdrawal or suspension of the entry ban to which they are subject, and before a derived right to residence may be granted (para. 55).
Therefore, Member States authorities cannot refuse to examine an application for family reunification solely on the ground that the TCN is subject of an entry ban. It is their duty to examine the application and to assess whether there is a relationship of dependency of such a nature that a derived right of residence must, as a general rule, be accorded to that TCN (para. 57). The ECJ adds that Articles 3(6) and 11 (3) of the Return Directive cannot call into question that conclusion (para. 59).
Relationship of dependency
The ECJ secondly examines the circumstances in which a relationship of dependency exists (para. 63 et seqq.). It carefully analyses all the situations submitted and comes to the conclusion that adults (unlike minors), as a general rule, are capable of living an independent existence apart from the members of their family. For adults, derived rights of residence are therefore only conceivable in exceptional cases, where any form of separation of the TCN and the member of his family on whom he or she is dependent is not possible (para. 65). All relevant circumstances must be considered on a case-by-case basis.
Where the EU citizen is a minor, it is important to determine in each case which parent is the primary carer und whether there is a relationship of dependency between the child and the TCN parent. Competent authorities must take into account the right to respect for family life (Article 7 of the Charter of Fundamental Rights) in conjunction with the obligation to take into consideration the best interests of the child (Article 24(2) of the Charter of Fundamental Rights) (see also Chavez-Vilchez).
The fact that the other parent, who is a Union citizen, is able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but not in itself sufficient ground for the conclusion that there is no relationship of dependency between the child and the TCN parent. All specific circumstances must be taken into account, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the EU citizen parent and to the TCN parent, and the risks which the separation from the letter might entail for the child’s equilibrium (para. 72). The fact that the TCN parent lives with the child is one of the relevant factors for the determination of a relationship of dependency, but not a prerequisite (para. 73). On the other hand, neither economic reasons nor the existence of a (natural or legal) link between the minor EU citizen and his TCN parent are sufficient to prove that the minor EU citizen will be compelled to leave the territory of the EU (para. 74 and 75).
The Court then concludes that the fact that the relationship of dependency came into being after the imposition of the entry ban on the TCN is not relevant (art. 77 et seqq.). Likewise, it is immaterial that the entry ban has become final when the application for residence is submitted (para. 82 et seqq.).
Finally, according to the ECJ, the reasons for the entry ban are also irrelevant (para. 85 et seqq.). According to Article 11(1) of the Return Directive, Member States must impose an entry ban where a TCN who has been the subject of a return decision has not complied with his or her obligation to return, or where no period for voluntary departure was granted to him or her, which may be the case where the TCN represents a risk to public policy, public security or national security (Article 7(4) of the Return Directive). As the Court has already clarified in the Rendon Marin case, reasons of public policy and public security may be invoked to justify a derogation of Article 20 TFEU, but the competent authorities must assess the situation of the applicants in the light of the right to family life (Article 7 of the Charter) and in conjunction with the obligation to take into consideration the best interests of the child (Article 24(2) of the Charter). Furthermore, the concepts of “public policy” and “public security” must be interpreted strictly (para. 91). A refusal of a right of residence is compatible with Article 20 TFEU if it is founded on a genuine, present and sufficiently serious threat to the requirements of public policy or public security (para. 92). However, such a decision may not be taken solely and automatically on the basis of the criminal record of the person concerned. The assessment must take into account the personal conduct of the individual concerned, the length and legality of his residency on the territory of the Member State, the nature and gravity of the offence committed, the extent to which the person is currently a danger to society, the age of any children at issue and their state of health, as well as their economic and family situation (see the Rendon Marin judgment).
In the cases submitted to the ECJ, it was clear that such an assessment was neither made before the rejection of the application for residence, not at the time of the adoption of the return decision (para. 95 et seqq.).
Violation of the Return Directive
Finally the ECJ also clarifies that, where the TCN cannot qualify for a derived right of residence under article 20 TFEU, Article 5 of the Return Directive precludes a Member State from adopting a return decision without taking into account the relevant details of the TCN’s family life which that person has put forward (para. 104). However, the TCN is subject to a duty of honest cooperation with the competent national authority, meaning that he or she is obliged to inform the authority of any relevant changes of his or her family life as quickly as possible (para. 105).
Beyond Zambrano and Dereci – The Importance of the K.A. case
The K.A and others case is an important advancement of Zambrano, but also of Dereci, McCarthy Chavez-Vilchez and Rendon Marin. It is now clear that a Member State may not refuse a request for family reunification by a TCN with an EU citizen where the TCN is subject to an entry ban. It must be assessed on a case-by-case basis whether there is a relationship of dependency with the EU citizen, which may compel the EU citizen to leave the territory of the EU to accompany the TCN and therefore deprive him or her of the famous “genuine enjoyment of the substance of rights conferred by the status as EU citizen” (para. 62). Like in Zambrano, the fact that the EU citizen has never exercised his or her right to free movement and has always lived in the same Member State, is of no importance to the Court.
The ECJ gives Member States a long list of factors to be assessed. Firstly, it distinguished between adults and children, faithful to the principles developed in Zambrano and Dereci:
For adults, derived rights of residence are only conceivable in exceptional cases, where any form of separation of the TCN and the member of his family on whom he or she is dependent is not possible.
As to children, the following criteria must be taken into account: The age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the EU citizen parent and to the TCN parent, and the risks which the separation from the letter might entail for the child’s equilibrium. Economic reasons are generally not sufficient.
Last but not least, the K.A. judgment also provides for important guidelines on the application of Article 5 of the Return Directive. The Court emphasized that, before adopting a return decision, Member States must always consider the details of the TCN’s family life, unless these details could have been provided earlier. The EU Return Directive, once more, needs to be interpreted in the light of the Charter on Fundamental Rights, as it contains many lacunae, especially with regard to the right to be heard (see also Mukarubega and Boudjlida). Member States have to undertake considerable efforts to be in line with the Charter on Fundamental Rights when applying the Directive.