Can Third Country National Stepfathers Derive Rights Of Residence From Union Citizen Children?: Part 2

O & S v Maahanmuuttovirasto v L [2012] EUECJ C-356/11 (06 December 2012)

This post analyses the rationale espoused by the CJEU in relation to its ruling which is highlighted in Can Third Country National Stepfathers Derive Rights Of Residence From Union Citizen Children? Part 1.

The CJEU’s Reasoning

(1) EU Law and Union Citizenship

The Court (para 38) observed that the joint position of Finland, Denmark, Germany, Italy, the Netherlands, Poland and the European Commission was that Zambrano related to exceptional situations where national law caused the Union citizen’s enjoyment of substantive rights to be denied. So the instant cases differed significantly in that O and M were neither the biological fathers, nor had custody, of the Union citizen children from whom they tried to derive their rights of residence. Equally, the fact that the Union citizen children’s mothers were permanently resident in Finland and were not compelled to leave Union territory to maintain the family unit was also in conflict with Zambrano. Hence, by that logic, the mothers’ choice to leave Union territory was not construable as an “inevitable consequence of the refusal to grant their spouses a right of residence.”

Germany and Italy also submitted that O and M were not a part of the Union citizens’ nuclear families because they were not the minors’ biological parent(s) and the children were not their dependants. But the Court (para 40) emphasised that despite the workings of national law, O and M relied on family reunification with S and L who were their sponsors and with whom reunification was sought.

Contrary to the German and Italian stance, the CJEU (para 55) considered it noteworthy that although the Zambrano principles applied only in exceptional circumstances, the Court’s case-law did not establish that the said principles were “confined to situations in which there is a blood relationship between the third country national for whom a right of residence is sought and the Union citizen who is a minor from whom that right of residence might be derived.”

Insofar as the Citizens Directive is concerned, the CJEU reiterated that family members could only derive a right of residence from the Union citizen where that citizen had exercised the right of freedom of movement by settling in a Member State other than the Member State of which he is a national: Metock & Ors (Area of Freedom, Security and Justice) [2008] EUECJ C-127/08, Dereci & Ors (European Citizenship) [2011] EUECJ C-256/11. So in the instant cases, because the two Union citizen children had never ultilised the right to freedom of movement and had always resided in Finland, they could not rely on the concept of “beneficiary” within the meaning of Article 3(1) of the Citizens Directive. Thus, the Citizens Directive did not apply to them or their family members (para 42).

Recalling that the right of freedom of movement – with respect to the Finnish children in the instant proceedings – could not “be assimilated to a purely internal situation [a situation which has no factor linking it with any of the situations governed by European Union law]”, the CJEU explained (paras 43 – 44) that these children could still rely on the status of Union citizens accorded to them under Article 20 TFEU “against the Member State of which they are nationals”; thus (para 45), Article 20 TFEU precluded refusing the grant of rights of residence to a Union citizen’s family members where such behaviour denied Union citizens the genuine enjoyment of the substance of the rights conferred by their status (Zambrano, para 42 cited).

Under the CJEU’s case-law, the test for the contravention of the genuine enjoyment of the Union citizen’s rights required that he would not only leave the Member State of his nationality but also the Union altogether. So it was extraordinarily that a third country national, who was the Union citizen’s family member, may not (owing to the impairment of the Union citizen’s enjoyment of his rights) be refused a right of residence. In the instant cases – bearing in mind that the Union citizen children’s mothers possessed permanent residence in Finland and neither the Union citizen children nor the mothers were obliged to leave the Union or the Member State’s territory – this was a question for the national court to decide (paras 49 & 50). In doing so, the national court should consider all the circumstances of the case and decide whether the refusal of the residence permits in the main (Finnish) proceedings leads to the circumvention of the enjoyment of the Union citizens’ right (para 53). Living together with the sponsor is not conclusive in making the decision because in applications for family reunification some family members “may arrive in the Member State concerned separately from the rest of the family” (para 54).

The reality that the Union citizen children relied upon were part of a reconstituted family unit and the sponsors’ custody rights also remained relevant to these cases. Because S and L had sole custody of the Union citizen children, leaving Finland to preserve the family unit would have the consequence of depriving the Union citizen children of contact with their biological fathers, whereas staying on in Finland to maintain contact with the biological fathers of the Union citizen children would have the consequence of undermining the relationship of the non-Union citizen children with their, third country national, biological fathers (para 51).

Citing para 68 of Dereci, the CJEU took the view that economic reasons or the preservation of the family unit on Union territory in relation to a family composed in a manner consistent with the present cases was insufficient “in itself to support the view that the Union citizen would be forced to leave the territory of the Union if such a right of residence were not granted” (para 52).

The Court (para 56) also reiterated Advocate General Bot’s position – in his opinion – about legal, financial or emotional dependency on the third country national who is refused a right of residence; that dependency must be assessed “when examining the question whether, as a result of the refusal of a right of residence, those citizens would be unable to exercise the substance of the rights conferred by their status.” Advocate General Bot (para 42) had, of course, opined that to preserve family life the Union citizens’ mothers were free to choose to remain in or leave Finland and that the latter choice was not imposed by national legislation. Explaining (para 43) that Article 20 TFEU was not in breach in the present cases, Advocate General Bot applied Dereci which restricted the Zambrano principle. In his opinion, he stated:

44. The reasons linked to the departure of the citizen of the Union from its territory are therefore particularly limited in the case-law of the Court. They concern situations in which the Union citizen has no other choice but to follow the person concerned, whose right of residence has been refused, because he is in that person’s care and thus entirely dependent on that person to ensure his maintenance and provide for his own needs.

Ultimately, it is that relationship of dependency which was telling about whether Union citizenship would be imperiled because of the Union citizen’s departure not only from the Member State of their nationality but also the Union as a whole. Since such dependency was not observable on the information available, subject to the national court’s verification, the CJEU held that Article 20 TFEU did not preclude a Member State from granting O and M residence permits on the basis of family reunification (para 58).

If the national court finds that refusing O and M residence permits did not culminate in the denial of the genuine enjoyment of the substance of their stepchildren’s rights as Union citizens, under para 69 of Dereci other criteria such as the right to the protection of family life/fundamental rights were nonetheless at play and required to be addressed in each case (para 59).

(2) Directive 2003/86/EC (“the Directive”) and Family Reunification

The Directive was mentioned in the reference but a question concerning it was not put directly to the CJEU. However, the CJEU could consider rules of EU law which may be of use in ruling on the case pending before it: Alevizos (Taxation) [2007] EUECJ C-392/05. The Directive’s aim is to ascertain the circumstances in which third country nationals resident in the Member States’ territory may exercise a right to family reunification. “Family members”, as defined, do not include family members of a Union citizen. In past case-law (Dereci, para 48), the Court formulated the view that the Directive was not applicable to third country national family members who wished to enter and reside in the Member State concerned to live as a family with Union citizens.

Against that background, in the instant case, S and L were lawfully resident third country nationals in Finland who sought family reunification as sponsors within the meaning of Article 2(c) of the Directive and their third country national children with O and M did not enjoy the status of Union citizens contained in Article 20 TFEU.

In light of the Directive’s aims – to promote family reunification, protect third country nationals (particularly minors) – the CJEU held that the Directive’s scope could not exclude families for reasons connected to their composition where “one of the parents of a minor third country national is also the parent of a Union citizen, born of a previous marriage” (para 69 of Chakroun (Area of Freedom, Security and Justice) [2010] EUECJ C-578/08 cited). Precise and positive obligations, in respect of family reunification, with corresponding clearly defined individual rights were imposed on Member States – which enjoyed no margin of appreciation – under Article 4(1) of the Directive: Parliament v Council (Area of Freedom, Security and Justice) [2006] EUECJ C-540/03, paragraph 60. But Article 7(1)(c) empowered Member States to require the sponsor to furnish evidence of sufficient “stable and regular resources” – to be construed as a function of their nature, regularity, minimum wage, pensions and the number of family members (Chakroun, para 42) – capable of maintaining himself and his family members without burdening the “the social assistance system of the Member State concerned.”

However, the Court elucidated that the resources of the sponsor were relevant but that the sponsor was, if the need exceptionally arose, entitled to claim special assistance to maintain himself (para 72 – 73). So a Member State could not refuse family reunification to a sponsor who proved stable and regular resources but relied on special assistance to meet exceptional, individually determined, essential living costs or income support measures (Chakroun, para 52 cited). Equally, Member States could not rely on Article 7(1)(c) to undermine the Directive’s efficacy. Furthermore, the objectives of the Charter of Fundamental Rights (CFR) were respected by the Directive which adhered to the principles enshrined therein.

Thus, it was necessary that the Directive not only respected Article 7 CFR (mirroring Article 8 ECHR) but also Article 24(2) and (3) of the CFR by virtue of which children were entitled to “to maintain on a regular basis a personal relationship with both parents”: emphasis supplied, Parliament v Council, para 58 and Detiček (Area of Freedom, Security & Justice) [2009] EUECJ C-403/09, para 54 cited. So Article 7(1)(c) of the Directive was not construable as disregarding these fundamental rights contained in the CFR and Member States had to interpret national law consistently with EU law and eschew relying “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): Parliament v Council, para 105 and Detiček, para 34 cited.

Although, in the above context, Articles 7 and 24 could not deprive Member States of their margin of appreciation, the Directive’s provisions in respect of family reunion “must be interpreted and applied in the light of Articles 7 and 24(2) and (3) of the Charter [CFR]”. Therefore, the competent authorities must examine any applications for family reunification taking particular account of “the interests of the children concerned … with a view to promoting family life” and “make a balanced and reasonable assessment of all the interests in play” (paras 80 – 81).

The CJEU’s answers, at para 82, to the questions referred are set out in Part 1.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, CFR, Children, CJEU, ECHR, Finland and tagged , , , , , , . Bookmark the permalink.

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