Case C-82/16 KA and Others v Belgische Staat EU:C:2018:308 (2024)

Key Point

In exceptional cases, the Zambrano ruling has effect so as to ensure that a member state awards a residence permit to a Third Country National (TCN) even if their EU-citizen-family-member has not exercised their right to freedom of movement and establishment (‘static Union citizen’).

Facts

• Applicants (TCNs) were family members of Belgian nationals who were yet to exercise their right of freedom of movement or establishment – all applicants were subject to an entry ban.
• The applicants made applications for residence permits: either:
  • As a dependent relative in descending line of Belgian national
  • Parent of a minor Belgian child
  • Lawfully cohabiting partner in relationship with Belgian national.
• These applications were not examined by the Belgian authorities on the ground that the applicants were subject to entry bans that remained in force.

Issue

Does Article 20 TFEU extend the derivative right of a TCN to a residence permit even where the EU family member is a ‘static Union citizen’?

Held

TCN does not have an autonomous right, but one derived from a link to the citizenship rights of an EU national and, exceptionally, residence permits must be given to TCNs who are family members of an EU citizen

Judgment (CJEU)

• The objective pursued by Article 20 TFEU would be defeated if a third-country national were compelled to leave, for an indefinite period, the territory of the European Union in order to obtain a withdrawal or suspension of the ban on entering that territory to which he is subject without it having been ascertained, first, that there does not exist, between that third-country national and a Union citizen who is a family member, a relationship of dependency of such a nature that the Union citizen would be compelled to accompany the third-country national to his or her country of origin, even though, precisely because of that relationship of dependency, a derived right of residence ought, as a general rule, to be granted to that third-country national under Article 20 TFEU. [58]
• It follows that Article20 TFEU must be interpreted as precluding a practice of a Member State that consists in not examining an application for residence for the purposes of family reunification, submitted on its territory by a third-country national family member of a Union citizen who is a national of that Member State and who has never exercised his or her right to freedom of movement, solely on the ground that that third-country national is the subject of a ban on entering the territory of that Member State, without any examination of whether there exists a relationship of dependency between that Union citizen and that 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 Union citizen would, in practice, be compelled to leave the territory of the European Union as a whole and thereby be deprived of the genuine enjoyment of the substance of the rights conferred by that status. [62]

The Relationship of Dependency

• The court then addressed the particular facts of each applicant’s case. [63-75]
• It follows from paragraphs 64 to 75 of this judgment that Article 20 TFEY must be interpreted as meaning that: [76]
  • – where the Union citizen is an adult, a relationship of dependency, capable of justifying the grant to the third-country national concerned of a derived right of residence under Article 20 TFEU is conceivable only in exceptional cases, where, in the light of all the relevant circ*mstances, any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible;
  • – where the Union citizen is a minor, the assessment of the existence of such a relationship of dependency must be based on consideration, in the best interests of the child, of all the specific circ*mstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties to each of his parents, and the risks which separation from the third-country national parent might entail for that child’s equilibrium. The existence of a family link with that third-country national, whether natural or legal, is not sufficient, and cohabitation with that third-country national is not necessary, in order to establish such a relationship of dependency.

Commentary

Craig and de Burca:

• “The salient issue in the joined cases was whether Article 20 TFEU precluded a Member State practice of not examining an application for residence for the purposes of family reunification submitted, on the territory of that Member State, by a third-country national who was the subject of an entry ban. The consequence was that the applicant would have to leave the EU to make the application. The CJEU repeated the principles from its prior case law. A third-country national did not have an autonomous right based on Article 20, but only a derived right that was linked to the citizenship rights of an EU national. The CJEU reiterated the principle from Zambrano to the effect that exceptionally a residence permit had to be given to the third-country national who was a family member of an EU citizen. This was so, even where the EU citizen had not exercised free movement rights, if the consequence of the refusal was that the EU citizen would have to leave the EU, thereby depriving her of the benefits of EU citizenship. This was, however, conditional on showing a relationship of dependency that required the EU citizen to leave the EU if the third country national was not given the residence permit.”

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