Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

O., S. and L.

Case Number: Joined C-356/11 and C-357/11

Relevance of Decision

The case is relevant because it clarifies the rights arising from the status of citizen of the EU under Article 20 TFEU, especially when the EU citizen are minors and the person who is refused the residence permit is not the biological parent of the minor and does not have the minor’s custody.

Facts of the case

Ms S/L are nationals of third countries who enjoy permanent residence in a EU Member State following their marriage with EU national citizens. Both couples had a child who is also a citizen of the EU. Ms S/L then divorced their husbands and were granted sole custody of the child. All members of their families live in Finland.

Ms S/L remarried with third country nationals. After that, their new third country national spouses applied for a residence permit on the basis the marriages. The new couples also have other children who are third country nationals and live in Finland. Ms S’ husband lives in Finland together with Ms S and two children; M L’s husband was returned to his country of origin.

In both cases, the third country national husbands were refused the residence permit on ground that they did not have secure means of subsistence.

Legal Questions

The legal questions arising from this case are the following:

  1. Does Article 20 TFEU preclude a third country national from being refused a residence permit because of lack of means of subsistence in a family situation in which his spouse has custody of a child who is a citizen of the Union and the third country national is not the child’s parent, does not have custody of the child/does not live with his spouse or with the child?
  2. Is Directive 2003/86 applicable in this? If so, can the application of the third country nationals’ husbands be refused on grounds that they did not have sufficient resources?

Court Findings

With regard to the first question, the CJEU recalled its previous findings in Zambrano: Article 20 TFEU precludes national measures, including refusals to grant rights of residence to family members of a Union citizen, which have the effect of denying Union citizens the genuine enjoyment of the substance of the rights conferred by their status (see Ruiz Zambrano, § 42). In the Zambrano case, the criterion of the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union referred to exceptional situations, i.e. to situations where the Union citizen had, in fact, to leave not only the territory of the Member State of which he was a national but also that of the European Union as a whole.

In this case, first the CJEU held that the principles established in Zambrano do not apply only in cases where there is a blood relationship between the third country national seeking the residence and the EU national but may apply also in situations like the present one.

When assessing whether those principles apply in the present case, the CJEU noted that Ms S/L (the mothers if the EU national) have a permanent right of residence in an EU Member State. Moreover, it noted that the third country nationals seeking a right of residence are not those to whom the EU citizen who is a minor depend legally, financially or emotionally. Hence, since it is the relationship of dependency between the Union citizen and the third country national who is refused a right of residence that is liable to impact the effectiveness of the Union citizenship, the Court held that in this case

Finally, the CJEU also clarified that the fact that the right to a residence is sought by a person who already lives together with the sponsor and the other family members is not decisive in the assessment.

With regard to the second question, the CJEU assessed if Directive 2003/86 could be applied. It stated that while it is true that this Directive does not apply to EU nationals; on the other hand, the application of this Directive cannot be excluded only because one of the third country nationals is also a parent of a Union citizen. Hence, in view of the fact that both Ms S and Ms L are third country nationals, as their children who are born out of the their second marriage, the CJEU found Directive 2003/86 applicable in the present case.

Article 4 imposes on the Member States to authorise the family reunification of certain members of the sponsor’s family, without margin of appreciation provided that the conditions under Chapter IV of Directive 2003/86 are satisfied. Among them Article 7 (c) stipulates that the sponsor needs to have “stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members”.

In light of Directive 2003/86, the CJEU found that it is for the referring Court to assess: first, whether the resources of the sponsor (in this case Ms S and Ms L) and not that of the third country national asking for a residence permit are “stable” and “regular”; second, that the fundamental rights of the person involved are considered and respected (recital 2 of Directive 2003/86), particularly Articles 7 and 24 of the Charter.