CJEU - C-557/17, Staatssecretaris van Veiligheid en Justice v Y.Z, Z.Z. & Y.Y.

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Country of Applicant: 
China
Date of Decision: 
14-03-2019
Citation: 
C-557/17 Y.Z. and others
Court Name: 
Court of Justice of the European Union (Fourth Chamber)
Headnote: 

Residence permits obtained in the context of family reunification and long-term resident status, under Directives 2003/86 and 2003/109, may be withdrawn if they were issued on the basis of falsified documents, even if the holders were unaware of the fraud committed. 

Facts: 
In 2001, Y.Z., a Chinese national, obtained a fixed-term residence permit in the Netherlands in connection to his duties as the manager of a company. In 2002, his wife and their minor son obtained ordinary fixed-term residence permits for the purpose of family reunification under Directive 2003/86. In 2006, the mother and son were granted indefinite residence permits.
 
In 2014, the residence permit of Y.Z. was retroactively withdrawn as it was found that the employment that provided the basis for the permit was fictitious. The father's fraudulent declarations of employment were the basis to grant and extend the mother’s and son’s fixed-term residence permits. Following this, the State Secretary also withdrew the residence permits first issued to the mother and son for the purpose of family reunification, as well as the long-term residence permits that had been subsequently issued. According to the State Secretary, it was irrelevant whether the mother and son were or were not aware of the fraud committed by Y.Z. and the fraudulent nature of those declarations of employment.The preliminary ruling concerns the interpretation of Article 16(2)(a) of Council Directive 2003/86 and Article 9(1)(a) of Council Directive 2003/109 concerning the status of third-country nationals who are long-term residents.
Decision & Reasoning: 

First question

The Court recalled that under Article 16(2) of Directive 2003/86 Member States may withdraw the residence permits of family members of a third-country national (sponsor) where falsified documents have been produced for the purpose of obtaining those permits. The provision does not identify the person who must have provided the documents or committed the fraud, nor does it require that the family member concerned knew of it. The Court further relied on a contextual interpretation and noted that the grounds laid down in Article 16(2) of Directive 2003/86 for the withdrawal of a residence permit are identical to the grounds for the rejection of an application for entry and residence under Article 5 (2) of the same Directive. Those grounds must therefore be interpreted in the same way in both cases.

Additionally, the sponsor is of central importance in the system established by Directive 2003/86, meaning that if the fraud was committed by the sponsor, it should affect residence permits granted to the members of the sponsor’s family, even if the latter did not know about the fraud. As long as the family members concerned do not have an autonomous right of residence on the basis of Article 15 of the directive, their right of residence is derived from the sponsor. The Court further noted that the right to family reunification by third-country nationals is based on them residing lawfully in the territory of a Member State. The father cannot be regarded as residing lawfully on the territory as his residence permit has been withdrawn with retroactive effect.  It is therefore, a priori, justified that such a national cannot benefit from that right and that the residence permits granted to the members of his family on the basis of that Directive may be withdrawn too.

Nevertheless, as the Advocate General observed in his Opinion, the withdrawal cannot occur automatically according to the text of Article 16(2) of Directive 2003/86. Moreover, in accordance with Article 17 of that Directive, a case-by-case examination by the Member State must occur, making a balanced and reasonable assessment of all the interests at play. This includes the person’s family relationship, the duration of the residency in the territory and especially in regard to the withdrawal of a right to residence, the existence of the person’s family, cultural and social ties with his country of origin. Furthermore, according to recital 2 of Directive 2003/86, measures concerning family reunification must be adopted in conformity with fundamental rights, in particular the right to respect private and family life guaranteed by Article 7 of the Charter, which contains rights corresponding to those protected by Article 8 (1) of the ECHR. The Court also noted the Advocate General’s point that the national authorities must consider in the present case that the mother and son were not personally responsible for the fraud committed by the father and they had no knowledge of it.

Second question

The Court referred to Article 9(1)(a) of Directive 2009/109/EC, which provides that the long-term resident shall lose the right to that status where fraud was committed. As established by the Court’s case-law, individuals cannot rely fraudulently on EU law, since the prohibition of fraud is a general principle of EU law. Furthermore, the objective of the directive is the integration of third-country nationals who are settled lawfully and on a long-term basis in the Member State, bringing the rights of those nationals closer to those enjoyed by EU citizens. Concerning these extensive rights, it is important that Member States are able to combat fraud effectively by terminating any long-term resident status which is based on fraud. Therefore, the actual commission or knowledge of the fraudulent act is not as decisive as the fact that those rights were acquired on the basis of fraud.

The Court recalls that in the present case, the fraudulent declarations of employment of the father were produced in support of the application by the mother and the son seeking to obtain long-term resident status, in order to give the impression that they had stable, regular and sufficient resources, which is necessary to acquire such status. It follows that, pursuant to Article 9(1)(a) of Directive 2003/109, a third country national loses that long-term resident status where it is established that the acquisition of that status was based on falsified documents, even if that national was unaware of the fraudulent nature of those documents. However, the loss of long-term resident status does not mean, in itself, that the person concerned also loses the right of residence in the host Member State, nor does it have the automatic consequence of removal from the territory of that Member State, as is clear from Article 9(7) of Directive 2003/109.

Outcome: 

1. Article 16(2)(a) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that, where falsified documents were produced for the issuing of residence permits to family members of a third-country national, the fact that those family members did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing those permits. In accordance with Article 17 of that directive, it is however for the competent national authorities to carry out, beforehand, a case-by-case assessment of the situation of those family members, by making a balanced and reasonable assessment of all the interests in play.

2. Article 9(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, must be interpreted as meaning that, where long-term resident status has been granted to third-country nationals on the basis of falsified documents, the fact that those nationals did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing that status. 

 

Case Law Cited: 

CJEU - C-469/13 Tahir

C-359/16 - Altun and Others

CJEU - C‑356/11 and C‑357/11 O and Others

CJEU - Judgment of 4 June 2015, P and S, C 579/13

CJEU - C-558/14, Khachab
Authentic Language: 
English
Country of preliminary reference: 
Netherlands
National / Other Legislative Provisions: 
Law on Foreign Nationals of 23 November 2000 (Stc. 2000
No. 495)