This pair of cases was referred to the Court of Justice of the European Union (CJEU) by the Korkein hallinto-oikeus – the Finnish Supreme Administrative Court. Although as recalled by recital (17) of Directive 2003/86/EC’s Preamble, the UK is not bound by this legislation on the right to family reunification, these cases nonetheless make very interesting reading because they also involved Article 20 (Citizenship of the Union) of the Treaty on the Functioning of the European Union (TFEU), Directive 2004/38/EC (the Citizens Directive), Article 7 of the Charter of Fundamental Rights (mirroring Article 8 of the ECHR) and Ruiz Zambrano (European Citizenship)  EUECJ C-34/09. In addition to respect for private and family life, these cases also turned on children’s best interests. Centrally, the question which arose was whether a third country national’s right of residence could be derived from the Union citizenship of a child of which he is not the father but the step-father?
In a nutshell, the facts of the cases can be set out as:
1. S, a Ghanaian permanently resident in Finland had a Finnish child, of whom she had sole custody. She divorced her Finnish husband and married O from Côte d’Ivoire. S studied, took maternity leave, qualified for a trade, and had been gainfully employed. Relying on his marriage to S, O applied for a residence permit. Subsequently, S and O had a child (of Ghanaian nationality). O, S and the two children live together. O worked under a contract and earned an hourly wage. O’s application was refused by the Maahanmuuttovirasto (Finland’s immigration office) because he was not perceived to have a secure means of subsistence; no exception, under Finnish law, was made for an exceptionally serious reason or for the best interests of the child. O’s appeal to the Administrative Court was dismissed. Aggrieved he and S appealed to the Supreme Administrative Court.
2. L, an Algerian, permanently resident in Finland had a child who has dual Finnish and Algerian nationality and has always lived in Finland. She divorced her Finnish spouse (who lives in Finland) and acquired sole custody of their child. Next, L married M (an Algerian asylum seeker who entered lawfully and lived with L) who was later repatriated to Algeria. Subsequently, on the basis of her marriage, L applied to the Maahanmuuttovirasto for M to be granted a residence permit following which the couple’s child was born in Finland. L survives/lives off subsistence support and other benefits but M (whose contact with the his child remains unknown) believed that his linguistic skills would enable him to find work in Finland. But the Maahanmuuttovirasto refused the application because it consideredc that M did not have secure means of income. The decision was annulled by the Administrative Court and the Maahanmuuttovirasto appealed to the Supreme Administrative Court.
The Questions Referred
In either case, the Finnish Supreme Administrative Court considered that the refusal of residence permits to O and M raised questions in respect of the Ruiz Zambrano principles because S and L and their Union citizen children, in their sole custody, may be forced to leave the EU to keep their family lives intact.
Despite some factual differences, in either case the main issue was whether a Member State could refuse to grant residence permits in the event a third country national sought to derive rights of residence based on the citizenship rights enjoyed pursuant to Article 20 TFEU by his wife’s child (over whom he had no custody rights) from a previous marriage, and whether the third country national’s cohabitation with his spouse was relevant.
In the first or S and O’s case, the following questions were referred:
1. Does Article 20 TFEU preclude a third country national from being refused a residence permit because of lack of means of subsistence in a family situation in which his spouse has custody of a child who is a citizen of the Union and the third country national is not the child’s parent and does not have custody of the child?
2. If the answer to Question 1 is in the negative, must the effect of Article 20 TFEU be assessed differently if the third country national who does not have a residence permit, his spouse, and the child who is in the custody of the spouse and has Union citizenship live together?’
In the second case or L and M’s case, the differences in the factual matrix in S and O’s case caused the questions to be framed in slightly different terms:
1. Does Article 20 TFEU preclude a third country national from being refused a residence permit because of lack of means of subsistence in a family situation in which his spouse has custody of a child who is a citizen of the Union and the third country national is not the child’s parent, does not have custody of the child, and does not live with his spouse or with the child?
2. If the answer to Question 1 is in the negative, must the effect of Article 20 TFEU be assessed differently if the third country national who does not have a residence permit, and does not live in Finland, and his spouse have a child, in their joint custody and living in Finland, who is a third country national?
The reference inquired whether EU citizenship law could be understood as precluding the refusal of a residence permit to a third country national on the ground of family reunification in circumstances that he desires residence with his third country national wife (lawfully resident in the Member State in question – who has had a Union citizen child from a past marriage) and with a third country national child of their own marriage. Equally, clarification was sought as regards whether the Union citizen child’s non-biological father’s – not in custody of the Union citizen child – living together with his wife was capable of affecting the construal of the provisions on Union citizenship.
And the CJEU responded to these questions in the following terms:
Article 20 TFEU must be interpreted as not precluding a Member State from refusing to grant a third country national a residence permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is a Union citizen, and with the child of their own marriage, who is also a third country national, provided that such a refusal does not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union, that being for the referring court to ascertain.
Applications for residence permits on the basis of family reunification such as those at issue in the main proceedings are covered by Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Article 7(1)(c) of that directive must be interpreted as meaning that, while Member States have the faculty of requiring proof that the sponsor has stable and regular resources which are sufficient to maintain himself and the members of his family, that faculty must be exercised in the light of Articles 7 and 24(2) and (3) of the Charter of Fundamental Rights of the European Union, which require the Member States to examine applications for family reunification in the interests of the children concerned and also with a view to promoting family life, and avoiding any undermining of the objective and the effectiveness of that directive. It is for the referring court to ascertain whether the decisions refusing residence permits at issue in the main proceedings were taken in compliance with those requirements.
Please see Part 2 for more.