On 8 May 2018, the CJEU ruled in case C-82/16 K.A. and others, which concerned preliminary questions referred by the Belgian Council for Alien Law Litigation on whether EU law precludes national authorities from not examining the merits of a request for family reunification made by a family member of an EU citizen when that family member is the subject of an entry ban that is still in force.
The CJEU found that Article 20 TFEU precludes such a practice where national authorities do not examine whether there exists a relationship of dependency between the EU citizen and the third-country national of such a nature that, in the event of a refusal to grant a derived right of residence to the third country national, the EU citizen would, in practice, be compelled to leave the territory of the EU as a whole and thereby be deprived of the genuine enjoyment of the substance of the rights conferred by that status.
In that sense, the CJEU has clarified the circumstances in which a relationship of dependency may justify a derived right of residence for a family member of an EU citizen who has never exercised his right of freedom of movement. If the family member is an adult, he can, as a general rule, be considered capable of living an independent life apart from the members of his family. Therefore, a derived right of residence is only conceivable in exceptional circumstances, where there could be no form of separation of the individual concerned from the family member on whom he/she is dependent. Where the EU citizen is a minor, the degree of dependency must be based on the best interests of the child and in consideration of all circumstances, such as the age of the child, the child’s psychical and emotional development, the emotional ties with the parents, and the risks of separation. The existence of a family link, whether natural or legal, is not sufficient to establish such a relationship of dependency. Similarly, cohabitation is a relevant, but not a necessary, element in that assessment.
The CJEU also found that it is immaterial (1) that the relationship of dependency comes into being after the imposition of an entry ban, (2) that the entry ban has become final at the time the third-country national submits the application for residence for family reunification purposes, and (3) that the ban was justified by non-compliance with an obligation to return. A derived right to residence can be refused on public policy grounds only if it is apparent from a specific assessment of all the circumstances, and taking into account the principle of proportionality, best interests of the children concerned and fundamental rights, that the person concerned represents a genuine, present and sufficiently serious threat to public policy.
Finally, the CJEU ruled that Article 5 of the Returns Directive precludes a national practice pursuant to which a return decision can be adopted with regard to a third country national, who has previously been the subject of a return decision, accompanied by an entry ban that remains in force, without any account being taken of the details of his or her family life, referred to in an application for residence for the purposes of family reunification submitted after the adoption of such an entry ban, unless such details could have been provided earlier by the person concerned.
ELENA Weekly Legal Update, 11 May 2018, available here.
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