CJEU: Interpretation of Directive 2003/86 on the right to family reunification

Thursday, December 12, 2019

On 12 December 2019, the Court of Justice of the European Union (the Court) published its judgment in the joined cases C-381/18 and C-382/18 on the interpretation of Directive 2003/86 concerning the legality of decisions refusing residence permits for the purpose of family reunification.

The applicants in both cases were convicted of criminal offences. In case C-381/18, the applicant’s request to extend his residence permit was rejected and his residence permit was revoked with retroactive effect. In case C-382/18, the applicant’s request for a residence permit for the purpose of family reunification was rejected for public policy reasons. The questions referred to the Court included, inter alia, whether Article 6 (1) and (2) of Directive 2003/86 must be interpreted as precluding national practice whereby public authorities may reject a request for entry and residence based on grounds of public policy relating to a criminal conviction, and whereby public authorities may revoke or refuse to renew a residence permit if the applicant has been given a sufficiently serious conviction.

It first noted that Article 6(1) and (2) does indeed allow authorities to reject applications relating to entry and residence permits when there is a threat to public policy. The matter to determine was therefore the scope of a genuine, present and sufficiently serious threat to public policy. On this issue, the Court noted, inter alia: that Article 6 (1) and (2) does not expressly require a genuine, present and sufficiently serious threat; the mere existence of a conviction may be sufficiently serious; and Directive 2003/86 seeks to promote family reunification and protect minor third country nationals. Indeed, this objective should not be undermined and should be pursued in accordance with the principle of proportionality. The competent authorities cannot automatically consider that the individual concerned constitutes a threat to public policy under Article 6 (1) and (2) solely because of a criminal conviction unless it can be shown to be so serious or of such a nature that it is necessary to deny the residence of that individual. The Court added that the competent authorities must carry out an individual assessment of the situation of the person concerned, taking into account the nature and solidity of that person’s family relationships, of the duration of their residence in the Member State and of the existence of family, cultural and social ties with their country of origin.

The Court therefore held that Article 6 (1) and (2) must be interpreted as not precluding practice of competent authorities refusing residence permits, withdrawing residence permits, or refusing to extend permits if the applicant received a penalty for an offence that was of a sufficiently serious nature to justify excluding the residence of the individual on the grounds of public policy.

Photo: Kevan, March 2008, Flickr (CC)

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.



Family reunification