On 4 October 2018, Advocate General Paolo Mengozzi published his opinion on case C 557/17, regarding a request for a preliminary ruling by the Dutch Council of State, on the possibility to withdraw a residence permit granted under Directive 2003/86 (Family Reunification), if the issued permit was based on the applicant’s fraudulent data.

In the Advocate General’s opinion, Article 16(2)(a) of the Directive does not preclude the withdrawal of a residence permit, granted in the context of family reunification as a secondary right, if it was based on fraudulent data and the intention of the applicant was to evade or circumvent the conditions of issue. This is true even if the permit holder did not know the fraudulent nature of the sponsor’s provided information. However, before deciding on the withdrawal, the competent authorities of the Member States must assess all the interests involved, according to Article 17 of the Directive. The assessment must be done in light of all the relevant circumstances of each case, also taking into consideration the fact that the holder of the residence permit did not commit the fraudulent practice.

Similarly, the Dutch Council of State referred a question on whether the loss of long-term resident status granted under the Directive 2003/109, as a result of fraudulent data, may be subject to the condition that the holder of that status was aware of the fraud. In this regard, AG Mengozzi is of the opinion that Article 9(1)(a) of that Directive precludes the withdrawal of long-term resident status where the holder of that status was not aware of the fraudulent nature of the information provided to obtain it (i.e. employment certificates).

The AG notes that according to Article 8(1) of the directive, subsequent non-compliance with the requirements provided for acquisition of long-term resident status is not among the grounds of loss or withdrawal of that status – as these are exhaustively set out under Article 9. Furthermore, he observes that the long-term resident status must ensure maximum legal certainty for its holder, in accordance with the travaux préparatoires of the Directive. Consequently, the AG concluded that such considerations must mean that such a status cannot be withdrawn for reasons other than those of Article 9.