1) This request for a preliminary ruling concerns the interpretation of Article 20 TFEU, Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 5 and 11 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).
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32) In those circ*mstances, the Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings, Belgium) decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1) Should EU law, in particular Article 20 TFEU and Articles 5 and 11 of [Directive 2008/115], read in the light of Articles 7 and 24 of the Charter, be interpreted as precluding in certain circ*mstances a national practice whereby a residence application, lodged by a family member who is a third-country national in the context of family reunification with an Union citizen in the Member State where the Union citizen concerned lives and of which he is a national and who has not made use of his right of freedom of movement and establishment (a “static Union citizen”), is not examined — whether or not accompanied by a removal decision — for the sole reason that the family member concerned who is a third-country national is subject to a valid entry ban with a European dimension?
(a) Is it important when assessing such circ*mstances that there is a relationship of dependence between the family member who is a third-country national and the static Union citizen which goes further than a mere family tie? If so, what factors play a role in determining the existence of a relationship of dependence? Would it be useful in that regard to refer to case-law relating to the existence of a family life under Article 8 [of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (“ECHR”)] and Article 7 of the Charter?
(b) With reference to minor children in particular, does Article 20 TFEU require more than a biological tie between the parent who is a third-country national and the child who is a Union citizen? Is it important in that regard that cohabitation is demonstrated, or do emotional and financial ties suffice, such as residential or visiting arrangements and the payment of maintenance? Would it be useful in that regard to refer to what was stated in the Court of Justice judgments of 10 July 2014, Ogieriakhi (C‑244/13, EU:C:2014:2068, paragraphs 38 and 39); of 16 July 2015, Singh and Others (C‑218/14, EU:C:2015:476, paragraph 54); and of 6 December 2012, O. and S. (C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 56)? See also in that regard [the judgment of 10 May 2017, Chavez-Vilchez and Others (C‑133/15, EU:C:2017:354)].
(c) Is the fact that the family life was created at a moment when the third-country national was already subject to an entry ban and thus aware of the fact that his stay in the Member State was illegal, important for the assessment of such circ*mstances? Could that fact be of relevance to combat the possible abuse of residence procedures in the context of family reunification?
(d) Is the fact that no legal remedy within the meaning of Article 13(1) of Directive 2008/115/EC was applied for against the decision to impose an entry ban or the fact that the appeal against the decision to impose an entry ban was dismissed important for the assessment of such circ*mstances?
(e) Is the fact that the entry ban was imposed on grounds of public policy or on grounds of irregular stay a relevant factor? If so, must an examination also be undertaken of whether the third-country national concerned also represents a genuine, present and sufficiently serious threat to one of the fundamental interests of society? In that regard, can Articles 27 and 28 of Directive 2004/38/EC, which were transposed in Articles 43 and 45 of the [Law of 15 December 1980], and the associated case-law of the Court of Justice on public policy, be applied by analogy to family members of static Union citizens (see [the judgments of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675), and of 13 September 2016, CS (C‑304/14, EU:C:2016:674)])?
(2) Should EU law, in particular Article 5 of Directive 2008/115 and Articles 7 and 24 of the Charter, be interpreted as precluding a national practice whereby a valid entry ban can be invoked in order not to consider a subsequent application [for residence for the purposes of] family reunification with a static Union citizen, lodged in the territory of a Member State, without taking due account of family life and the best interests of the children involved, which were mentioned in that subsequent application for family reunification?
(3) Should EU law, in particular Article 5 of Directive 2008/115 and Articles 7 and 24 of the Charter, be interpreted as precluding a national practice whereby a decision on removal is taken with regard to a third-country national who is already subject to a valid entry ban, without taking due account of family life and the best interests of the children involved, which were mentioned in a subsequent application for [residence for the purposes of] family reunification with a static Union citizen, i.e. after the entry ban was imposed?
(4) Does Article 11(3) of Directive 2008/115 imply that a third-country national must in principle lodge an application for the withdrawal or suspension of a final and valid entry ban from outside the European Union or are there circ*mstances in which he can also lodge that application in the European Union?
(a) Must the third and fourth subparagraphs of Article 11(3) of Directive 2008/115 be understood to mean that the requirement laid down in the first subparagraph of Article 11(3) of the said Directive, to the effect that the withdrawal or the suspension of the entry ban can only be considered if the third-country national concerned is able to demonstrate that he or she has left the territory in full compliance with a return decision, must plainly have been met in every individual case or in all categories of cases?
(b) Do Articles 5 and 11 of Directive 2008/115/EC preclude an interpretation whereby a residence application in the context of family reunification with a static Union citizen, who has not exercised his right of freedom of movement and establishment, is regarded as an implicit (temporary) application to withdraw or suspend the valid and final entry ban whereby, if it is shown that the residence conditions have not been met, the valid and final entry ban is revived?
(c) Is the fact that the obligation to lodge a request for withdrawal or suspension in the country of origin possibly entails only a temporary separation between the third-country national and the static Union citizen, a relevant factor? Are there nevertheless circ*mstances in which Articles 7 and 24 of the Charter preclude such a temporary separation?
(d) Is the fact that the only effect of the obligation to lodge a request for withdrawal or suspension in the country of origin is that the Union citizen would, if necessary, only have to leave the territory of the European Union in its entirety for a limited time, a relevant factor? Are there circ*mstances in which Article 20 TFEU nevertheless precludes the fact that the static Union citizen would have to leave the territory of the European Union in its entirety for a limited time?’
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42) By the first two questions, which can be examined together, the referring court seeks, in essence, to ascertain:
- whether Articles 5 and 11 of Directive 2008/115 and Article 20 TFEU, read, when necessary, in the light of Articles 7 and 24 of the Charter, 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 right of freedom of movement, solely on the ground that that third-country national is subject to a ban on entering that territory, without there being any examination of whether there exists a relationship of dependency between that Union citizen and that third-country national of such a kind that, in the event of a refusal to grant a derived right of residence to the third-country national, the Union citizen would, in fact, be compelled to leave the territory of the European Union as a whole and would accordingly be deprived of the genuine enjoyment of the substance of the rights conferred by his status;
- if the answer is in the affirmative, what factors should be taken into account in order to assess whether there is such a relationship of dependency and, when the Union citizen is a minor, what importance should be given to the existence of family ties, whether natural or legal, to where the Union citizen who is a national of the Member State concerned lives and to who is responsible for the financial support of that Union citizen;
- what might be the effect, against that background, of:
- the fact that the relationship of dependency relied on by the third-country national in support of his or her application for residence for the purposes of family reunification comes into existence after the imposition of an entry ban on that third-country national;
- the fact that that entry ban may have become final at the time when the third-country national submits his or her application for residence for the purposes of family reunification; and
- the fact that that entry ban may be justified by failure to comply with an obligation to return or on public policy grounds.
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43) It must be determined, first, whether Articles 5 and 11 of Directive 2008/115 or Article 20 TFEU, read, where necessary, in the light of Articles 7 and 24 of the Charter, 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 that is submitted, on the territory of that Member State, by a third-country national who is the subject of an entry ban.
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71) More particularly, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the European Union and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by Article 20 TFEU if the child’s third-country national parent were to be refused a right of residence in the Member State concerned, it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of the Charter (judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 70).
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90) As regards, second, the fact that the entry ban is due to public policy grounds, the Court has previously held that Article 20 TFEU does not affect the possibility of Member States relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security. That said, in so far as the situation of the applicants in the main proceedings falls within the scope of EU law, assessment of that situation must take account of the right to respect for private and family life, as laid down in Article 7 of the Charter, an article which must be read, when necessary, in conjunction with the obligation to take into consideration the child’s best interests, recognised in Article 24(2) of the Charter (see, to that effect, judgments of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 81, and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 36).
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98) By its third question, the referring court seeks, in essence, to ascertain whether Article 5 of Directive 2008/115 and Articles 7 and 24 of the Charter must be interpreted as precluding a national practice pursuant to which a return decision is adopted with respect to a third-country national, on whom a return decision, accompanied by an entry ban, has previously been imposed, without any account being taken of the details of his family life, and in particular the interests of his minor child, referred to in an application for residence for the purposes of family reunification submitted after the imposition of such an entry ban.
