CJEU - C-356/11 and C-357/11, O, S v Maahanmuuttovirasto, and Maahanmuuttovirasto v L

The central question in these proceedings is whether the provisions of European Union law on citizenship of the Union must be interpreted as precluding a Member State from refusing to grant a third country national a residence permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is Union citizen, and with the child of their own marriage, who is also a third country national. The referring Court also asked whether the fact that the applicant for a residence permit lives together with his spouse, is not the biological father of the child who is a Union citizen, and does not have custody of the child may affect the interpretation to be given to the provisions on citizenship of the Union.

The Court has held that Art. 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 the Union citizens the genuine enjoyment of the substance of the rights conferred by their status (Para. 45). In this case it is for the referring Court to establish whether the refusal of the applications for residence permits in the circumstances of this case constitutes a denial of the genuine enjoyment of the substance of the rights conferred by their status. Relevant factors include the fact that the children are part of reconstituted families and that a decision by Ms S and Ms L to leave Europe would have the effect of depriving those Union citizens of all contact with their biological fathers. Secondly, if they remain on the territory this would have the effect of harming the relationship of the other children, who are third country nationals, with their biological fathers. The Court clearly held that the application of the Ruiz Zambrano principles is not limited to situations where there is a blood relationship between the third country national for whom a right of residence is sought and the Union citizen who is a minor (Para. 55).

The Court went on to address the question of a right of residence within the framework of the right to the protection of family life and considered the rules within Directive 2003/86. It found that the application of that Directive cannot be excluded solely because one of the parents of a minor third country national is also the parent of a Union citizen, born of a previous marriage (Para. 69). As regards Art. 7(1)(c) of that Directive the Court held that this provision must be interpreted and applied in light of Articles 7 and 24(2) and (3) of the Charter of Fundamental Rights which require Member States to examine the applications for reunification in the best interests of the child concerned and with a view to promoting family life (Para 80). Para 81: It is for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned.