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CJEU - Joined Cases C 356/11 and C 357/11 / Opinion

O, S v Maahanmuuttovirasto, and Maahanmuuttovirasto v L
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
27/09/2012
ECLI (European case law identifier)
ECLI:EU:C:2012:595

Den Europæiske Unions charter om grundlæggende rettigheder

Title II: Freedoms

Article 7 - Respect for private and family life

Title III: Equality

Article 24 - The rights of the child

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  • CJEU - Joined Cases C 356/11 and C 357/11 / Opinion
    Key facts of the case:
     

    Citizenship of the Union — Right to family reunification — Applicability of the principles set out in Ruiz Zambrano — Sponsor who is the parent of a child with Union citizenship born of a previous marriage — Right of residence of the sponsor’s new spouse, a third-country national — Refusal on the basis of a lack of sufficient resources — Right to respect for family life — Obligation to take into consideration the interests of minor children.

    Outcome of the case:

    In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions submitted by the Korkein hallinto-oikeus:

    (1) Article 20 TFEU must be interpreted as not precluding a Member State from refusing a third-country national a residence permit because of lack of sufficient means of subsistence, where that national intends to reside with his spouse, a third-country national residing lawfully in that Member State, and a child who is a citizen of the Union, born of his spouse’s first marriage.

    That provision should not be interpreted differently where the third-country national lives together with his spouse and the spouse’s child in the territory of the Member State.

    Nor should that provision be interpreted differently where the third-country national has returned to his country of origin, but has, with his spouse, a child who is a third-country national, who resides in the Member State concerned and is in the joint custody of both parents.

    (2) However, it is for the national court to examine whether, in the implementation of the criteria set out in Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, and within the limits of the Member State’s margin of appreciation in the area, the competent national authority carried out a fair and balanced assessment of the competing interests at issue, seeking, in particular, to respect the family life of the parties concerned and to determine the best solution for the child. In that context, the national court must carry out an in-depth examination of the family situation and take due account of the particular circumstances of the case, whether they are of a factual, emotional, psychological, or financial nature.

  • Paragraphs referring to EU Charter

    6) Pursuant to Article 7 of the Charter of Fundamental Rights of the European Union, ( 6 ) everyone has the right to respect for his or her private and family life.

    7) Moreover, as provided in Article 24(2) of the Charter, the child’s best interests must be a primary consideration in all actions which concern it, whether taken by public authorities or private institutions. In accordance with Article 24(3) of the Charter, every child has the right to maintain on a regular basis a personal relationship and direct contact with both of his or her parents, unless that is contrary to his or her interests.

    ...

    8) Directive 2003/86 determines the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States. The second recital in the preamble states that the directive respects fundamental rights, in particular the right to respect for family life enshrined in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( 7 ) and in the Charter.

    ...

    63) Nevertheless, as regards the criteria defined in Article 7(1)(c) of that directive, the Court has ruled, in Chakroun, that that provision must be interpreted strictly so as not to undermine the objective of the directive, which is to promote family reunification, or its effectiveness. ( 18 ) Moreover, the Court has held that the Member States must exercise their margin of appreciation in the light of the right to respect for family life which is enshrined in Article 8 of the ECHR and which is guaranteed in the same words in Article 7 of the Charter. ( 19 ) The Court referred, in that respect, to the second recital in the preamble to Directive 2003/86 whereby the legislature of the Union requires that measures concerning family reunification be adopted in conformity with the obligation to protect the family and respect family life enshrined in those provisions.

    ...

    77) It should be recalled that the right to the respect for private and family life is guaranteed in Article 7 of the Charter, in the same terms as Article 8(1) of the ECHR, which means, under Article 52(3) of the Charter, that the meaning and the scope of that right must be determined by taking account of the case-law of the European Court of Human Rights in that regard. ( 28 )

    78) It should also be recalled that, according to the Court’s case-law, the right to respect for private and family life guaranteed in Article 7 of the Charter must be read in conjunction with the obligation to have regard to the child’s best interests, which are recognised in Article 24(2) of the Charter. ( 29 ) In other words, and in accordance with the requirements of that provision, the Member States must make the best interests of the child a paramount consideration when, acting through public or private authorities, they issue a legislative act relating to children. That requirement is expressly recalled in Article 5(5) of Directive 2003/86. The Member States must, moreover, ensure that the child may maintain personal relations and direct contact with both parents on a regular basis. ( 30 )