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CJEU Case C-165/14 / Opinion

Alfredo Rendón Marín v. Administración del Estado and C-304/14 Secretary of State for the Home Department v. CS
Policy area
Asylum and migration
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
04/02/2016
ECLI (European case law identifier)
ECLI:EU:C:2016:75

Carta drepturilor fundamentale a Uniunii Europene

Title II: Freedoms

Article 7 - Respect for private and family life

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  • CJEU Case C-165/14 / Opinion

    Key facts of the case:

    Citizenship of the Union — Articles 20 TFEU and 21 TFEU — Directive 2004/38/EC — Right of residence of a national of a non-member State who has a criminal record — Father having sole custody of two minor children who are Union citizens — First child a national of the Member State of residence — Second child a national of a different Member State but having always resided in the Member State of residence — National legislation precluding the grant of a residence permit to the relative in the ascending line on account of his criminal record — Denial of the right of residence potentially entailing the removal of the minor children from the territory of the European Union — Lawfulness — Existence of a right of residence in accordance with the judgments in Zhu and Chen (C‑200/02, EU:C:2004:639) and Ruiz Zambrano (C‑34/09, EU:C:2011:124)

    Outcome of the case

    In light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Tribunal Supremo (Supreme Court) and the Upper Tribunal (Immigration and Asylum Chamber) London as follows.

    In Case C‑165/14:

    Article 21 TFEU and Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as precluding national legislation which requires the automatic refusal of a residence permit for a third-country national who is the parent of a minor child who is a citizen of the Union and a dependent of that parent and lives with that parent in the host Member State, when that parent has a criminal record.

    It is contrary to Article 20 TFEU, as interpreted in the light of the judgments in Zhu and Chen (C‑200/02, EU:C:2004:639) and Ruiz Zambrano (C‑34/09, EU:C:2011:124), for that national legislation to require the automatic refusal of a residence permit for a third-country national, the parent of minor children who are citizens of the Union and of whom the parent has sole care and custody, on the grounds of the parent’s criminal record, when the consequence of such a refusal is that the children will have to leave the territory of the European Union.

    In Case C‑304/2014:

    It is, in principle, contrary to Article 20 TFEU for a Member State to expel from its territory to a non-member State a third-country national who is the parent of a child who is a national of that Member State and of whom the parent has sole care and custody, when to do so would deprive the child who is a citizen of the Union of genuine enjoyment of the substance of his or her rights as a citizen of the Union. Nevertheless, in exceptional circumstances, a Member State may adopt such a measure, provided that it:

    It is for the referring court to determine whether that is the position in the case before it.

  • Paragraphs referring to EU Charter
    1. The term ‘the substance of the rights’ employed by the Court inevitably calls to mind the concept of ‘the essential content of the rights’ or ‘the essence of the rights’, particularly of fundamental rights, (117) well known in the constitutional traditions of the Member States (118) and in EU law as well. (119) Moreover, EU law provides, in Article 52(1) of the Charter, as interpreted in the case-law of the Court of Justice, that limitations may be imposed on the exercise of rights, as long as those limitations are provided for by law, observe the essence of those rights and freedoms and, observing the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the necessity of protecting the rights and freedoms of others.
    2. It could be argued that, observance of the principle of proportionality being one criterion in the examination of limitations that may be imposed upon the exercise of fundamental rights, (120) from the point of view of a conception of the guarantees of the essential content of fundamental rights in relative terms, (121) observance of that principle must also be verified with regard to potential limitations of the rights attaching to the fundamental status of citizen of the Union, which include the right to move and reside freely in the territory of the Member States. Pursuant to Article 45(1) of the Charter, ‘every citizen of the Union has the right to move and reside freely within the territory of the Member States’.
    3. If that approach were to be accepted, it would then be appropriate to consider that observance of the essence of the rights deriving from the fundamental status of citizen of the Union operates, as in the case of observance of the essence of fundamental rights, ‘as an absolute, insuperable limit’ to any possible limitation of the rights attaching thereto, that is to say, as a ‘limit to limits’. (122) Indeed, failure to observe the essence of the rights conferred on citizens of the Union leads to those rights becoming ‘unrecognisable as such’, so that it would not then be possible to speak of a ‘limitation’ of the exercise of those rights but rather, purely and simply, of the ‘abolition’ of those rights. (123) In short, loss of citizenship of the Union (in Mr Rottmann’s case, as a result of his loss of the nationality of a Member State pursuant to an administrative decision) and denial of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union (for the children of Mr Ruiz Zambrano, as a result of their being compelled, as a matter of fact, to leave the territory of the European Union) have the same grave consequences for the right of residence of citizens of the Union. Whether the effect is final or long-term, (124) the right will, in principle, be stripped of its essential content, in this case, the freedom to reside in the territory of the European Union. Consequently, it must be established whether this limitation of the right of residence is proportionate, for, if it is not, it will overstep the limit set to any limitation of the rights attaching to the status of citizen of the Union, which is observance of the essential content of those rights. (125)
    4. Admittedly, it could also be argued that the meaning of ‘the substance of the rights’, employed by the Court, is not necessarily the same as the meaning of ‘the essence of the rights’, referred to in Article 52(1) of the Charter. (126) However, even if it is concluded that the two terms are not equivalent, (127) given that the national measures at issue entail a limitation of the right of residence of citizens of the Union, it is still necessary to examine their proportionality if the Member State concerned invokes the public policy or public security exception.
    1. In that assessment, account must be taken of the fundamental rights whose observance the Court ensures, in particular, the right to respect for private and family life, as set forth in Article 7 of the Charter and Article 8 ECHR, (163) as well as observance of the principle of proportionality.
    2. Accordingly, in assessing whether an expulsion measure is proportionate to the legitimate aim pursued, that being, in this case, the protection of public order or public security, account must be taken of the nature and seriousness of the offence, the duration of residence of the person concerned in the territory in question, his age, (164) state of health, family and economic situation, his social and cultural integration into the Member State of residence and the extent of his links with his country of origin.
    3. According to the case-law of the European Court of Human Rights, it must be determined whether there are any exceptional circumstances that warrant a finding that the national authorities have failed to strike a fair balance between the competing interests, in particular the interest of the children in maintaining their family life in the Member State in question, and thus whether the fundamental right of respect for family life guaranteed by Article 8 ECHR has been observed, (165) especially in cases involving an expulsion decision, like the present case. The consequences which such a decision might have for the children must therefore be taken into account. In weighing the interests at stake, the best interests of the children must be taken into account. (166) Particular attention must be paid to their age, their situation in the country or countries concerned and the extent to which they are dependent on their parents. (167)
    4. At all events, the Court having held that a Member State may, in the interests of public policy or public security, consider that the offences listed in point 170 of this Opinion constitute a danger for society such as to justify special measures against foreign nationals who contravene the laws in question, (168) it must follow that the criminal offence at issue is covered by the concept of public security, provided that it has consequences which threaten public security, which it is a matter for the national court to assess.