CJEU: Council Directive 2003/86 on family reunification prevents national legislation from automatically issuing a resident permit

On 20 November 2019, the Court of Justice of the European Union (the Court) published its judgment concerning the interpretation of Council Directive 2003/86 in cases of family reunification.

The case C-706/18 concerned an Afghan national, who made an application of family reunification in October 2013 to join her spouse, an Afghan national with refugee status, in Belgium. The request was initially rejected. On 13 March 2018, the Council of State held that after exceeding the six month expiration to decide on the application, a residence permit must automatically be issued. The primary question was therefore whether Council Directive 2003/86 prevents the automatic granting of a residence permit in the absence of a decision being adopted before the expiry of the period prescribed under national law.

The Court noted that the objective of Directive 2003/86 is not only to promote family reunification but also to establish the conditions under which the right to family reunification of third country nationals is exercised. In conformity with Directive 2003/86, Member States must examine the existence of a family relationship. Only when this has been established is the Member State able to authorise entry and issue residence permit.

In the current manifestation, domestic legislation provides for the implicit acceptance of applications upon the expiration of six months without any consideration of the aforementioned criteria. The Court held that such legislation operates contrary to the objectives of Directive 2003/86 and impairs its effectiveness. As a result, the Court held that Directive 2003/86 must preclude national legislation which automatically issues a residence permit in the absence of a decision before the six month expiration date without examining whether the relevant residence requirements are met.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.