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

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 The father cannot be regarded as residing lawfully on the territory as his residence permit has been withdrawn with retroactive effect.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that right and that the residence permits granted to the members of his family on the basis of that Directive may be withdrawn too.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.