CJEU Judgment in the Joined Cases C-356/11 and C-357/11, O, S, Maahanmuuttovirasto and Maahanmuttovirasto, 6 December 2012

(Reference for a preliminary ruling - Citizenship of the Union - Article 20 TFEU - Directive 2003/86/CE - Right to family reunification - Union citizens who are minor children living with their mothers, who are third country nationals, in the territory of the Member State of which the children are national - Permanent right of residence in that Member State of the mothers who have been granted sole custody of the Union citizens - Change in composition of the families following the mother's remarriage to third country nationals and the birth of children of those marriages who are also third country nationals - Applications for family reunification in the Member State of origin of the Union citizens - Refusal of the right of residence to the new spouses on the ground of lack of sufficient resources - Right to respect for family life - Taking into consideration of the children's best interests)

Referred questions
First question
-Case 356/11: Does Article 20 TFEU preclude a third country national from being refused a residence permit because of lack of means of subsistence in a family situation in which his spouse has custody of a child who is a citizen of the Union and the third country national is not the child's parent and does not have the custody of the child?
-Case 357/11: The first question is the same as in case 356/11 but adding the element that the third country national applying for a residence permit does not live with his spouse or with the child.

Second question
-Case 356/11: If the answer to [the first] question is in the negative, must the effect of Article 20 TFEU be assessed differently if the third country national who does not have a residence permit, his spouse, and the child who is in the custody of the spouse and has Union citizenship live together?
-Case 357/11: If the answer to [the first] question is in the negative, must the effect of Article 20 TFEU be assessed differently if the third country national who does not have a residence permit, and does not live in Finland, and his spouse have a child, in their joint custody and living in Finland, who is a third country national?

The questions referred for a preliminary ruling
The CJEU found that Article 20 TFEU does not preclude the possibility to deny a residence permit on the basis of family reunification in the situation described in the question, provided that such refusal does not entail a denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union for the child who is a Union citizen (notably the effect that the Union citizen would have to leave the territory of the European Union). It is for the referring court to ascertain whether this is the case.  National courts must then examine all the circumstances of the case. In this respect, whether the person for whom a residence permit is sought lives together with the sponsor of his application (his wife in the cases at stake) and the other family members is not decisive, just as the existence or not of blood relationships between the third country national and the Union citizen who is a minor. It is rather a situation of dependency of the latter in respect of the first that is liable to jeopardise the effectiveness of Union citizenship. The question of the custody of the sponsor's children and the fact that these are part of a reconstituted family are also relevant. Apart from these considerations related to Union citizenship, national courts would also need to consider the question from the point of view of the fundamental right to the protection of family life and its implications in this respect.

The Court finds that applications for residence permits on the basis of family reunification such as those at issue in the national proceedings are covered by Directive 2003/86 given that neither the sponsors nor the children they have in common with the third country nationals for whom they seek reunification are Union citizens. The applicability of Directive 2003/86 cannot be excluded by the fact that the sponsors are also parents of other children enjoying Union citizenship. Such Directive provides for the authorisation of family reunification as the general rule and the condition that it may be refused if the sponsor does not have stable and regular resources to maintain himself and the members of his family without recourse to the national social assistance system is to be interpreted strictly. Moreover, the right to respect for private and family life and the observance of the child's best interest (Articles 7 and 24(2) of the EU Charter of Fundamental Rights) must be given due regard as well.

For the full judgment please visit the website of the European Court of Justice.

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