Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The case is relevant because it clarified how to interpret Article 7(1)(c) of the Family Reunification Directive (Directive 2003/86), which establishes one of the requirements for the exercise of the right to family reunification of third country nationals for which Member States may request evidence. In particular the case concerned the requirement concerning the proof of “stable and regular resources which are sufficient to maintain [himself] and the members of [his] 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.”
Mr Khachab is a third country national residing in Spain who holds a long-term residence permit in Spain. He applies for a temporary residence permit for his spouse (also third country national) on grounds of family reunification. The Spanish authorities refused the application because he has not provide sufficient proof that he has resources to maintain his family once reunited. The assessment of the Spanish authorities was based on the likelihood of the ... resources in question being retained in year following the date of submission of the application, taking into account the pattern of [his income] in the six months preceding that date. Mr Khachab appealed such decision. In the framework of appeal proceedings, the High Court of Justice decides to refer the case to the CJEU.
The legal questions arising from the present case are the following:
The CJEU found that, in principle, under Family Reunification Directive Member States are allowed to carry out a prospective assessment of the sponsor resources. According to the CJEU, it is evident from the words “stable” and “regular” that the financial resources of the sponsor must have certain degree of permanence and continuity.
This interpretation is “not contradicted by the fact, raised by the referring court, that Article 7(1) of Family Reunification Directive uses the present tense when it states that the Member State concerned may require the person who has submitted the application for family reunification to provide evidence that the sponsor ‘has’ the elements listed in subparagraphs (a) to (c) of that provision. The sponsor must indeed prove that he has all of those elements, including ‘resources which are sufficient’, at the time when his application for family reunification is being examined, which justifies the use of the present tense. However, since it is apparent from the wording of Article 7(1)(c) of that directive that the sponsor’s resources must be not only ‘sufficient’ but also ‘stable and regular’, such requirements imply a prospective assessment of those resources by the competent national authority.”
Furthermore, the CJEU considered proportionate and reasonable the assessment of the resources carried out by the national authorities, who conducted the prospective assessment on the basis of the resources being retained in year following the date of submission of the application, taking into account the pattern of [his income] in the six months preceding that date.