Case C-256/11 – Dereci v Bundesministerium fur Inneres

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Respondent/Defendant:Bundesministerium fur Inneres
Court/s:ECJ
Citation/s:[2011] ECR I-0000
Nature of Proceedings:Preliminary ruling under Article 267 TFEU
Judgment Date/s:15 Nov 2011
Judge:Grand Chamber of the Court of Justice of the European Union
Category:EU Treaty Rights
Keywords:Child, Dependant, EU Treaty Rights, Family Life (Right to), Regularisation, Residence Permit
Country of Origin:Austria
URL:http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62011CJ0256:EN:HTML
Geographic Focus:Europe

The applicants were third country nationals who wished to live with their EU, and Austrian, citizen family members resident in Austria. The Union citizens had not exercised their free movement rights, and were not dependent on the applicants. All applicants had their applications for residence permits refused. The applicants and the Union citizens wished to live together, but there was no risk that the Union citizens would be deprived of their means of subsistence. The Court applied its accelerated procedure under Article 23a of the Statute of the Court and the first paragraph of Article 104a of the Rules of Procedure of the Court.

The Austrian referring court asked, essentially, whether EU law, and in particular the provisions concerning citizenship of the Union, must be interpreted as precluding a Member State from refusing to grant residence within its territory to a third country national, although that third country national wishes to reside with a family member who is a European Union citizen resident in that Member State and a national of that Member State, who has never exercised his right to free movement and who is not maintained by that third country national.

After clarifying that Directives 2003/86 and 2004/38 did not apply, the Court noted that it had previously held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see Case C-34/09 Zambrano [2011] ECR I-0000). The Court noted that it had considered that refusal of residence to the third country nationals in that the Zambrano case would lead to a situation where the Union citizen children would have to leave the territory of the Union in order to accompany their parents, and that in those circumstances, those Union citizens would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as Union citizens.

The Court stated that it follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of Union citizen status refers to situations in which the Union citizen, in fact, has to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole. The Court clarified that that criterion relates to situations where a right of residence may not, exceptionally, be refused to a third country national who is a family member of a Member State national, as the effectiveness of the Union citizenship enjoyed by that Union citizen would otherwise be undermined.

The Court stated that, consequently, the fact that it might desirable to a national of a Member State, for economic reasons or in order to keep his family together in the EU, for his third country national family members to be able to reside with him in the territory of the EU, is not sufficient to support the view that the Union citizen will be forced to leave the Union territory if such a right is not granted. The Court stated that this finding was without prejudice to the question of whether, on the basis of other criteria, including re the right to protection of family life, a right of residence cannot be refused.

With respect to family life, Article 7 of the Charter and Article 8 ECHR, the Court reiterated that the provisions of the Charter are, under Article 51(1) of the Charter, addressed to the Member States only when they implement EU law. The Court held that if the referring court considers that the situation of the applicants is covered by EU law, it must examine whether the residence permit refusals undermines the right of respect for family life under Article 7 of the Charter. On the other hand, if the referring court takes the view that the situation is not covered by EU law, it must undertake an examination under Article 8(1) ECHR.

*N.B., this case also dealt with Article 13 of Decision 1/80 of 19 September 1980 and Article 41(1) of the Additional Protocol of 23 November 1979, and that aspect of the decision are not summarised here.

Principles:

European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.

If, in considering, inter alia, a refusal of a residence permit in respect of a third country national, a national court considers that the situation is covered by EU law, it must examine whether the residence permit refusal undermines the right of respect for family life under Article 7 of the Charter. On the other hand, if the national court takes the view that the situation at issue is not covered by EU law, it must undertake an examination under Article 8(1) ECHR.

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